1913 


THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 

Gift  of 
Eenoer-Moss  Co. 


A  TREATISE 


ON 


THE  LAW  OF 

COMPENSATION 
FOR  INJURIES  TO  WORKMEN 

UNDER  MODERN,  INDUSTRIAL 
STATUTES 


BY 
JAMES  HARRINGTON  BOYD,  A.M.,Sc.D.  (Princeton) 

Chairman  of  the  Ohio  Employers'  Liability  Commission 
and  Member  of  the  Toledo  Bar 


IN  TWO  VOLUMES 

VOL.1 


INDIANAPOLIS 

THE  BOBBS- MERRILL  COMPANY 
PUBLISHERS 


\9I3 


PREFACE 


During  the  last  four  years  Workmen's  Compensa- 
tion and  Industrial  Insurance  Laws,  creating  the 
new  and  fundamental  principle  of  compensation  and 
insurance  for  injuries  to  workmen,  have  been  enacted 
into  statutes  by  the  United  States,  with  special  relation 
to  Federal  employes,  and  by  many  of  the  states  of  the 
Union.  Special  commissions  to  investigate  the  subject 
and  report  recommendations  have  been  appointed  by 
many  of  the  state  legislatures  and  it  seems  not  un- 
reasonable to  predict  and  it  is  to  be  hoped  that  within  a 
decade  the  principle  will  have  been  accepted  by  all  the 
states. 

The  principle  of  compensation  is  of  German  origin 
and  is  an  evolution  of  the  thought  and  purposes  of  the 
philosophers,  economists  and  statesmen  of  that  great 
nation.  Its  merits  have  been  established  by  more  than 
thirty  years  of  practical  and  successful  operation  on  a 
large  scale  in  that  country.  Substantially  all  the  civilized 
nations  of  the  world  have  followed  the  German  plan. 

It  is  the  purpose  of  the  author  to  point  out  and  dis- 
tinguish the  characteristics  of  the  different  remedies  for 
the  relief  of  injured  workmen — the  Common  Law  Rem- 
edy, Employers'  Liability  Laws,  Workmen's  Compen- 
sation and  Insurance  Acts ;  to  show  the  economic  effects 
of  the  operation  of  such  laws  from  an  ethical,  social  and 
political  point  of  view;  to  trace  the  historical  evolution 
of  these  laws;  to  analyze  their  constituent  elements 
and  point  out  the  fundamental  legal  principles  upon 

iii 


67071 8 


IV  PREFACE. 

which  these  laws  must  be  founded  under  our  constitu 
tional  limitations  and  finally  to  give  a  complete  account 
of  the  schemes  of  procedure  and  administration  em- 
ployed in  the  practical  operation  of  these  laws  in  our 
country.  If  permanency  is  to  be  assured  legal  principles 
must  be  based  upon  sound  economic  conclusions. 

It  is  both  a  duty  and  a  pleasure  to  acknowledge  the 
indebtedness  of  the  author  to  the  various  officials  and 
boards  charged  with  the  administration  of  the  law  in 
the  various  states  and  the  officials  of  the  Department  of 
Commerce  and  Labor,  for  many  courtesies  and  substan- 
tial help  in  the  preparation  of  this  work.  These  services 
have  been  freely  rendered  and  have  largely  consisted 
in  the  careful  and  painstaking  reading  of  the  proof  of 
the  chapters  relating  to  their  respective  jurisdictions,  in 
the  tender  of  the  useful  sets  of  forms  with  which  these 
chapters  are  enriched,  and  many  valuable  suggestions 
as  to  the  presentation  of  the  subject-matter  of  the  work. 

The  author  likewise  acknowledges  his  indebtedness 
to  the  Department  of  Commerce  and  Labor  for  the  use 
he  has  been  able  to  make  of  the  material  assembled  by 
the  department  in  its  fourth  special  report  written  and 
edited  by  the  scholarly  John  Graham  Brooks.  He  is 
under  similar  obligations  to  R.  J.  Gary  for  his  Brief  on 
the  Power  of  Congress  in  Respect  to  Industrial  Insur- 
ance, and  to  the  writings  of  Charles  R.  Henderson  on 
Industrial  Insurance. 

Space  will  not  permit  the  citation  of  a  complete  bibli- 
ography of  sources  of  information.  Aside  from  the  foot- 
notes a  fairly  comprehensive  bibliography  will  be  found 
in  the  24th  Annual  Report  of  the  Department  of  Com- 
merce and  Labor  and  in  Frankel  and  Dawson's  book 
on  Industrial  Insurance  in  Europe. 

The  subject  of  Workmen's  Compensation  and  In- 
surance has  largely  engrossed  the  attention  of  the  author 
for  some  twenty  years,  during  which  time  he  has  spent 


PREFACE.  V 

two  years  in  Europe  where  he  first  familiarized  him- 
self with  the  practical  operation  of  the  systems  in  the 
countries  of  their  origin.  He  submits  the  results  of  these 
years  of  study  and  labor  to  students  of  modern  industrial 
economics  and  to  the  bar  of  this  country,  which  is  large- 
ly charged  with  the  administration  and  interpretation 
of  the  laws,  confident  that  these  pages  have  vindicated 
the  enactment  of  these  laws,  that  their  scope  is  better 
understood  and  that  an  adequate  administrative  pro- 
cedure— in  the  light  of  the  present  state  of  the  subject — 
has  been  developed. 

JAMES  HARRINGTON  BOYD. 
Toledo,  December  2,  1912. 


TABLE  OF  CONTENTS 


VOLUME    ONE. 


CHAPTER  I. 

DISTINCTIONS  BETWEEN  THE  COMMON  LAW,  EMPLOYER'S 
LIABILITY  LAWS,  WORKMEN'S  INDUSTRIAL  INSURANCE 
LAWS,  AND  WORKMEN'S  COMPENSATION  LAWS  AS  REM- 
EDIES FOR  COMPENSATING  WORKMEN  INJURED  IN  THE 
DUE  COURSE  OF  THEIR  EMPLOYMENT. 


Sec. 

1.  The   common-law  system  of 

employer's  liability  prior 
to  the  employer's  liability 
and  workmen's  compensa- 
tion and  insurance  laws. 

2.  The   system   of     employer's 

liability  prior  to  the  work- 
men's insurance  and  com- 
pensation acts. 


Sec. 

3.  The   distinguishing     charac- 

teristics of  employer's  lia- 
bility laws. 

4.  The   modern   conception     of 

the   employer's  liability. 

6.  The  distinguishing  charac- 
teristics of  workmen's  com- 
pensation acts. 

6.  The  distinguishing  charac- 
teristics of  workmen's  in- 
dustrial insurance  laws. 


CHAPTER  II. 

HISTORICAL  SKETCH  OF  DEVELOPMENT  OF  WORKMEN'S 
INDUSTRIAL  INSURANCE  AND  WORKMEN'S  COMPENSA- 
TION LAWS  IN  THE  UNITED  STATES. 


Sec. 

7.  Inception   of   movement   for 

these  laws. 

8.  Previous     investigation      of 

the  problem. 

9.  The    Chicago    conference   of 

employer's      liability     and 
workmen's      compensation 
commissions. 
10.  Subjects  discussed. 


Sec. 

11.  Conclusions  of  the   Chicago 

conference. 

12.  The  work  of  the  State  com- 

missions. 

13.  Executive   recommendations. 

14.  The  Federal  employer's  lia- 

bility and  workmen's  com- 
pensation commission. 


Vll 


Vlll  TABLE  OF  CONTENTS 

CHAPTER  III. 

BRIEF  HISTORICAL  REVIEW  OF  THE  GERMAN  PLAN  OF 
INSURANCE  OF  WORKMEN  AGAINST  ACCIDENTS,  THE 
BRITISH  COMPENSATION  ACT,  AND  THE  OPERATION  OF 
THE  SYSTEMS  OF  EMPLOYERS'  LIABILITY  IN  GREAT 
BRITAIN  AND  THE  UNITED  STATES. 

Sec.  Sec. 

15.  Chronological     development      18.  British  compensation  legisla- 

of  the  subject.  tion. 

16.  The    insurance    message    of      19.  Some  characteristics  of  Ger- 

Emperor  William  I.  man   insurance   legislation. 

17.  German  industrial  insurance 

acts. 

CHAPTER  IV. 

THE  ORIGIN  AND  DEVELOPMENT  OF  COMPULSORY  INDUS- 
TRIAL INSURANCE  FOR  WORKMEN  IN  THE  GERMAN 
STATES-SICK  INSURANCE,  ACCIDENT  INSURANCE,  AND 
INVALIDITY  AND  OLD-AGE  PENSIONS. 

Sec.  Sec. 

20.  Conditions        in      Germany      27.  Basis    of   compulsory    insur- 

which   induced     considera-  ance. 

tion  of  the  subject.  28.  German  system  described. 

21.  Influence     of     Fichte      and      29.  The  relation  of  the  German 

Hegel.  industrial  insurance  law  to 

22.  Views  of  Sismondi.  Socialism. 

23.  Views  of  Winkelblech.  30.  Development    of    the    insur- 

24.  Views  of  Schaeffle,  father  of  ance  idea  from  the     early 

compulsory      state     insur-  guilds. 

ance.  31.  Miners'     societies      (Knapp- 

25.  Views  of  Wagner.  schaf tskassen) . 

26.  State  insurance  a  matter  of  32.  Ethical   basis   of  system. 

German  origin. 

CHAPTER  V. 

THE  ECONOMIC  BASIS  OF  COMPULSORY  INDUSTRIAL  INSUR- 
ANCE AND  COMPENSATION  LAWS  FOR  INJURED  WORK- 
MEN. 

Sec.  Sec. 

33.  Statement  of  problem  from      35.  Statistical  experience  under 

the  economic  standpoint.  compulsory  state  insurance 

34.  Statistical  studies  exhibiting  in  Germany. 

effects  of  old  and  new  sys- 
tems of  compensation. 


TABLE   OF    CONTENTS. 


IX 


Sec. 

36.  The    question    of    fault    and 

prevention  of  accidents — 
compensation — German  sta- 
tistics. 

37.  Experience   in   New   York. 

38.  The  Pittsburgh  survey. 

39.  The    Wisconsin     bureau     of 

statistics. 

40.  The  report  of    the     Illinois 

commission. 

41.  Ohio  statistics. 

42.  Average  amount  received  in 

settlement  in  Ohio  under 
old  system. 

43.  Attorney  fees  under  old  sys- 

tem in  Ohio. 

44.  Social  and  economic  results 

of  accidents. 

45.  Liability  insurance  statistics 

in  Ohio. 


Sec. 

46.  German       statistics        ana- 

lyzed. 

47.  Classification   of  causes     of 

accidents  in  Germany. 

48.  Miscellaneous  data. 

49.  Statistical  results  of  the  per 

cent,  of  workingmen  who 
receive  compensation  un- 
der the  common  law  and 
liability  laws. 

50.  Fundamental   economic   con- 

clusions. 

51.  Remedies  proposed — German 

and  English  plans. 

52.  Specific     provision     against 

the  economic  insecurity  of 
workingmen  in  the  United 
States. 

53.  Argument  for  joint  contribu- 

tion by  employer  and  em- 
ploye". 


CHAPTER  VI. 

THE  NEW  YORK  WORKMEN'S   COMPENSATION  ACT. 


Sec. 

54.  New    York   law     first     con- 

strued. 

55.  Nature   and   scope     of     the 

New  York  act. 

56.  Text  of  the  New  York  stat- 

ute— Labor  Law  art.   14a. 

57.  Construction  of  the  law  by 

the  court  of  appeals. 


Sec. 

58.  Argument   for     constitution- 

ality of  act. 

59.  Reasons  for  upholding  view 

of  court. 

59a.  New  York  General  Liability. 
Law     with     compensation 
features. 


CHAPTER  VII. 

THE  MONTANA  WORKMEN'S  INSURANCE  ACT. 


Sec. 

60.  Its  nature  and   construction 
by  the  Supreme  Court. 

61.  Questions    presented    to    the 
court. 


Sec. 

62.  The  constitutionality  of  the 
act. 

63.  The  effect  of  the  decision. 

64.  Text  of  the  Montana  Insur- 
ance Act. 


TABLE  OF   CONTENTS. 


CHAPTER  VIII. 

AN  ANALYSIS  OF  THE  PRINCIPLES  OF  THE  LEGAL  BASIS 
OF  COMPULSORY  INSURANCE  AND  COMPENSATION  LAWS. 


Sec.  Sec 

65.  Introductory.  83. 

66.  The  nature  and  remedial  pro- 

visions of  insurance  laws. 

67.  Nature  of  the  obligation  im- 

posed. 84. 

68.  Nature  of  the  obligation  im-      85. 

posed — German  view. 

69.  The  relationship  between  em- 

ployer and  employe  under     86. 
common-law   and    liability 
acts.  87. 

70.  The  relationship  between  em- 

ployer and  employe  under     88. 
insurance    and    compensa- 
tion acts.  89. 

71.  Validity    as    to    employer — 

Deprivation  of  defenses.          90. 

72.  Validity  as  to  employe. 

73.  Validity     as     to     employe—- 

Vested rights  in  remedies     91. 
withdrawn. 

74.  Validity    as   to   the    State- 

Public  interest. 

75.  The  problem  of  industrial  in-      92. 

surance. 

76.  Whether  these  laws  infringe 

constitutional  limitations.       93. 

77.  Insurance     acts     sustainable 

against    constitutional    ob- 
jections   under    analogous     94. 
decisions. 

78.  Analogous     decisions — Appli- 

cation to  insurance  acts. 

79.  Analogous      decisions — Bank 

depositors'  guarantee  acts.      95. 

80.  Analogous    decisions — Sheep- 

dog fund  cases. 

81.  Analogous     decisions — Whis-      96. 

ky  cure  cases. 

82.  Analogous     decisions — Farm- 

er's fund  cases. 


These  laws  an  exercise  of 
taxing  power — Attributes 
and  limitations  of  taxing 
power. 

Subjects  of  taxation. 

Similarity  of  attributes  of 
general  taxation  and  emi- 
nent domain. 

Necessity  that  purpose  of  tax 
be  a  public  purpose. 

The  public  purpose  for  which 
taxes  may  be  levied. 

Public  purpose  determined 
by  Legislature. 

Necessity  of  benefit  as  condi- 
tion to  right  to  tax. 

Necessity  of  return  of  benefit 
to  one  paying  to  special 
fund. 

Whether  conditions  of  equal- 
ity and  uniformity  are  sat- 
isfied in  insurance  and 
compensation  acts. 

Whether  contract  clauses  of 
constitutions  are  violated — 
Uniform  operation  of  laws. 

Insurance  and  compensation 
laws  a  proper  exercise  of 
police  powers. 

Whether  laws  open  to  objec- 
tion of  lack  of  uniformity 
of  operation  and  equality 
of  protection  —  Classifica- 
tion. 

Legislature  in  its  enactments 
limited  only  by  State  Fed- 
eral constitutions. 

Nature  of  administration  of 
compensation  acts. 


TABLE   OF    CONTENTS. 


XI 


Sec. 

97.  Nature  of  administration  of 
compensation  acts  wheth- 
er executive  or  judicial — 
Due  process. 


Sec. 

98.  Deprivation  of  right  to  trial 

by  jury. 

99.  Whether  act  may  be  optional. 


CHAPTER  IX. 

SUMMARY  OF  FOREIGN  COMPENSATION  LAWS. 


Sec. 

100.  Outline    of    foreign    work- 

men's compensation  laws. 

101.  Austrian  schedule. 

102.  Belgian  schedule. 

103.  British  Columbia  schedule. 

104.  Cape  of  Good  Hope  sched- 

ule. 

105.  Denmark  schedule. 

106.  Finland  schedule. 

107.  French  schedule. 

108.  German   schedule   of   com- 

pensation and  scope  of  act. 

109.  Great  Britain  schedule. 

110.  Greek  schedule  of  compen- 

sation and  scope  of  act. 

111.  Hungarian  schedule. 

112.  Italian  schedule. 


Sec. 

113.  Luxenburg  schedule. 

114.  Netherlands  schedule. 

115.  New  Zealand  schedule. 

116.  Norwegian       schedule       of 

compensation  and  scope  of 
act. 

117.  Queensland      schedule      of 

compensation    and    scope 
of  act. 

118.  Russian  schedule. 

119.  South  Australian   schedule. 

120.  Swedish  schedule. 

121.  Spanish  schedule. 

122.  West  Australia  schedule  of 

compensation  and  scope  of 
act 


CHAPTER  X. 

THE  WASHINGTON  WORKMEN'S  INSURANCE  ACT. 


Sec. 

123.  The    nature   and   scope    of 

the  Washington  industrial 
insurance  act. 

124.  The    workmen's    insurance 

act  with  its  construction 
by  the  board. 

125.  Proposed   amendment. 

126.  Constitutionality  of  the  act. 

127.  Opinion  of  the  court. 

128.  Rules  and  directions. 

129.  Rules    and    directions    for 

employers. 

130.  Rules     and    directions    for 

workmen. 


Sec. 

131.  Form  of  general  directions 

to  employe's  to  be  posted 
on  all  floors  of  plant. 

132.  Formal   procedure — List   of 

forms. 

133.  Form   of   report   of   actual 

payroll,  (a) 

134.  Form  of  contractor's  state- 

ment of  wages,  (b) 

135.  Form  of  monthly  statement 

of  city,  (c) 

136.  Form  of  notice   of  assess- 

ment, (d) 


XI 1 


TABLE  OF  CONTENTS. 


Sec.  Sec. 

137.  Form   of   elective    adoption      154. 

of   the   provisions   of  act. 
(e) 

138.  Form   of   demand   for   first 

quarterly      payment     re-      155. 
quired  by  act.  (f) 

139.  Form  of  monthly  statement.      156. 

(g) 

140.  Alphabetical   list  of   indus- 

tries with  rates  and  classi- 
fication,    (h) 

141.  Form  of  instructions  to  cit- 

ies, counties,  school,  port,      157. 
waterway,     drainage,     or 
other   municipal    corpora- 
tion, (i) 

142.  Form  of   letter  of  instruc-      158. 

tions  to  the  employers  and 
employes,  (j) 

143.  Form  of  employer's  report      159. 

of  accident  to  employe  with 
chart,  (k) 

144.  Workmen's  claim  for  com-      160. 

pensation.  (1) 

145.  Form  of  instructions  to  in- 

jured workman.  (1)  161. 

146.  Form  of  report  of  attending 

physician  with  charts,  (m)       162. 

147.  Form  of  surgical  discharge 

report,  (n) 

148.  Form  of  report  of  witnesses. 

(o) 

149.  Surgeon's      special      report      163. 

with  charts,  (p) 

150.  Form  of  proof  of  death  by 

physician,  (q) 

151.  Form  of  proof  of  death  by      164. 

undertaker,  (r) 

152.  Form  of  dependent's  claim       165. 

for  compensation,  (s) 

153.  Affidavit  to  foregoing  form.       166. 


Form  of  affidavit  of  claim- 
ant for  compensation — 
Survivors  of  deceased 
workmen,  (t) 

Form  of  summary  and 
award,  (u) 

Form  of  partial  payment 
voucher — Permanent  par- 
tial disability — Full  pay- 
ment— Total  temporary 
disability — Partial  pay- 
ment, (v) 

Form  of  partial  payment 
voucher — Total  temporary 
disability — Monthly  al- 
lowance, (vv) 

Form  of  pension  voucher — 
Permanent  total  disabil- 
ity, (w) 

Form  of  pension  voucher — 
Survivors  of  deceased 
workman,  (ww) 

Form  of  burial  expense 
voucher — Account  of  de- 
ceased workman,  (x) 

Form  of  final  settlement 
voucher,  (y) 

Form  of  election  to  receive 
compensation  and  assign- 
ment of  claim — Injuries 
by  defaulting  employer. 
(z) 

Election  to  receive  com- 
pensation and  assignment 
of  claim — Injury  by  other 
than  employer,  (zz) 

Statistical  reports  on  the 
operation  of  the  act. 

Review  of  the  first  eight 
months'  operation  of  act. 

Official  state  safety  bulle- 
tin. 


TABLE  OF  CONTENTS. 


Xlll 


CHAPTER  XL 

THE  OHIO  WORKMEN'S  INSURANCE  ACT. 


Sec.  Sec. 

167.  The    nature    of    the    Ohio      184. 

Workmen's  Insurance  act. 

168.  Ohio  act  an  insurance  act.         185. 

169.  Ohio  act  an  indirectly  com- 

pulsory act. 

170.  Employer's    liability    under 

the  act. 

171.  The   statute   and   its   inter-      186. 

pretation  by  the  board  and 
the  attorney-general. 

172.  The    decision    of    the    Su- 

preme Court  of  Ohio  sus- 
taining the  law.  187. 

173.  Workshop    and   factory   in- 

spection    and      regulation      188. 
act. 

174.  Rules   of  procedure   before       189. 

the  state  liability  board  of 
awards.  190. 

175.  Procedure  as  to  employers. 

176.  Forms   of  applications  and       191. 

notices  to  be  used  by  em- 
ployers covered  by  the 
act. 

177.  Form     of     application    for 

classification    of    industry      192. 
and  for  premium. 

178.  Form  of  supplementary  re- 

port— Accident  experience. 

179.  Form  of  notice  of  employer 

to  employe's.  193. 

180.  A   comparison   of  premium 

rates  under  the  Ohio  law       194. 
with     liability     insurance 
rates  under  compensation      195. 
laws. 

181.  Procedure  as  to  injured  em-      196. 

ploye"s. 

182.  Form  of  procedure  on  no-      197. 

tices  in  general. 

183.  Form  of  first  notice  of  in-      198. 

Jury,  (a) 


Form  of  first  notice  of 
death,  (b) 

Formal  procedure  for  pro- 
curing medical,  nurse,  and 
hospital  services  and  med- 
icines, without  compensa- 
tion. 

Form  of  application  for 
money  to  pay  for  medical, 
nurse  and  hospital  serv- 
ices and  medicines,  with- 
out compensation,  (a) 

Form  of  physician's  fee 
bill,  (b) 

Form  of  druggist's  cost 
bill,  (c) 

Form  of  employer's  certifi- 
cate and  oath,  (d) 

Form  of  certificate  and 
oath  of  lay  witness,  (e) 

Formal  procedure  to  obtain 
money  to  pay  for  medical, 
nurse  and  hospital  serv- 
ices and  medicines,  with 
compensation. 

Form  of  application  for 
money  to  pay  for  medical, 
nurse  and  hospital  serv- 
ices and  medicines,  with 
compensation,  (a) 

Form  of  employer's  certifi- 
cate and  oath,  (b) 

Form  of  physician's  fee 
bill,  (c) 

Form  of  druggist's  cost 
bill,  (d) 

Form  of  medical  fee  bill 
and  hospital  charges,  (e) 

Form  of  certificate  and 
oath  of  lay  witness,  (f) 

Formal  procedure  to  obtain 
compensation  in  case  of 
permanent  total  disability. 


XIV 


TABLE  OF  CONTENTS. 


Sec. 
199. 


200. 
201. 
202. 
203. 
204. 
205. 

206. 


207. 
208. 

209. 
210. 
211. 


Sec. 

Form    of    application     for      212. 
money  to  pay  for  medical, 
nurse   and  hospital  serv-      213. 
ices   and  medicines,  with 
compensation,   (a)  214. 

Form  of  employer's  certifi- 
cate and  oath,   (b)  215. 

Form    of     physician's    fee 
bill,  (c) 

Form     of    druggist's     cost 
bill,  (d) 

Form    of   medical    fee    bill      216. 
and  hospital  charges,  (e) 

Form  of  certificate  and  oath 
of  lay  witness,  (f) 

Forms  to  obtain  money  to 
pay  for  medical,  hospital      217. 
and  funeral  expenses  on- 
ly. 218. 

Form  of  application  for 
money  paid  for  medical, 
nurse  and  hospital  serv-  219. 
ices  and  medicines  and 
for  funeral  expenses,  with- 
out award,  (a)  220. 

Form  of  undertaker's  certi- 
ficate of   death   and   cost      221. 
bill,  (b) 

Form  of  lay  witness's  cer-      222. 
tificate  in  proof  of  death, 
(c)  223. 

Form  of  physician's  certifi- 
cate in  proof  of  death,  (d)       224. 

Form  of  employer's  certifi- 
cate and  oath,  (e)  225. 

Form    of     physician's     fee 
bill,  (f) 


Form  of  druggist's  cost 
bill,  (g) 

Form  of  medical  fee  bill 
and  hospital  charges,  (h) 

Form  of  certificate  and  oath 
of  lay  witness,  (i) 

Form  of  procedure  to  ob- 
tain compensation  and 
money  to  pay  for  medi- 
cal, hospital  and  funeral 
expenses. 

Form  of  application  for 
money  paid  for  medical, 
nurse  and  hospital  serv- 
ices and  medicines  and  for 
funeral  expenses,  (a) 

Form  of  proof  of  depend- 
ents, (b) 

Form  of  undertaker's  certi- 
ficate of  death  and  cost 
bill,  (c) 

Form  of  lay  witness's  cer- 
tificate in  proof  of  death, 
(d) 

Form  of  physician's  certifi- 
cate in  proof  of  death,  (e) 

Form  of  employer's  certifi- 
cate and  oath,  (f) 

Form  of  physician's  fee 
bill,  (g) 

Form  of  druggist's  cost 
bill,  (h) 

Form  of  medical  fee  bill  and 
hospital  charges,  (i) 

Form  of  certificate  and 
oath  of  lay  witness,  (j) 


CHAPTER  XII. 

THE  WISCONSIN  WORKMEN'S  COMPENSATION  ACT. 


Sec. 

226.  Nature   and   scope  of  Wis- 

consin act. 

227.  Text    of    Wisconsin    work- 

men's compensation  act 
with  construction  of  its 
provisions. 


Sec. 

228.  The  opinion  of  the  Supreme 
Court  of  Wisconsin  sus- 
taining constitutionality 
of  act. 


TABLE  OF  CONTENTS. 


XV 


Sec.  Sec. 

229.  Decisions    of   commission — 

Construction  of  word  "em- 
ployment." 

230.  Decisions   of   commission —      241. 

Powers  of  commission — 
Review  of  awards — Con- 
struction of  word  "em- 
ployment." 242. 

231.  Decisions   of  commission — 

Construction      of     "wilful      243. 
misconduct." 

232.  Decisions    of   commission —      244, 

Construction  of  word 
"support."  245. 

233.  Decisions   of  commission — 

Construction  of  "casual 
employment"  and  time  of 
serving  "notice."  246. 

234.  Decisions   of   commission — 

Meaning  of  "support"  "de- 
pendents." 

235.  Procedure  under  the  act —      247. 

Rules  of  practice. 

236.  Circular1   letter   to   employ- 

ers by  the  commission  in      248. 
explanation  of  its  rules  of 
practice.  249. 

237.  Formal     procedure     under 

Wisconsin  act.  250. 

238.  Form  of  employer's  written 

acceptance,  (a)  251. 

239.  Form  of  employer's  notice      252. 

of  withdrawal  from  oper- 
ation of  act.  (b)  253. 

240.  Form    of    notice    that    em- 

ployer has  filed  notice  of 


election  to  become  sub- 
ject to  provisions  of  act. 
(c) 

Form  of  notice  by  employ- 
er to  the  commission  of 
compliance  with  the  law. 
(d) 

Form  of  first  report  of  ac- 
cident, (e) 

Form  of  supplementary  re- 
ports on  accident,  (f) 

Form  of  answer  to  appli- 
cation, (g) 

Form  of  notice  by  employe 
that  he  elects  to  be  sub- 
ject to  provisions  of  act. 
(h) 

Form  of  notice  of  employe" 
upon  entering  employ- 
ment that  he  elects  not  to 
be  subject  to  act.  (i) 

Form  of  notice  to  employer 
of  claim  for  injury  under 
act.(j) 

Form  of  application  for  ad- 
justment of  claim,  (k) 

Form  of  accident  report  of 
casualty  company.  (1) 

Form  of  notice  of  hearing, 
(m) 

Form  of  subpoena,  (n) 

Form  of  admission  of  serv- 
ice, (o) 

Form  of  notice  of  the  entry 
of  findings  and  award 
made  by  commission,  (p) 


CHAPTER  XIII. 

NEW   JERSEY   COMPENSATION  ACT. 


Sec. 

254.  Nature  and  scope  of  act. 

255.  Text  of  New  Jersey  work- 

men's  compensation   act. 

256.  Text  of  supplementary  act 

saving  existing  contracts. 


Sec. 

257.  Text  of  act  creating  the 
employer's  liability  com- 
mission. 


TABLE  OF  CONTENTS. 


Sec. 

258.  Text    of    act    requiring    re- 

ports of  industrial  acci- 
dents to  be  made  to  the 
Department  of  Labor. 

259.  Construction     of     act     and 

procedure   thereunder. 


Sec. 

260.  Form  of  accident  blank  for 

report  by  employer. 

261.  Form   of   report  by   insur- 

ance company  to  commis- 
sioner of  Labor  on  acci- 
dent and  compensation 
paid. 


CHAPTER  XIV. 

THE  CALIFORNIA  WORKMEN'S  COMPENSATION  ACT. 


Sec.  Sec. 

262.  The    nature    and    scope    of      275. 

the  act. 

263.  The  California  act  and  its 

construction  by  the  board.      276. 

264.  Reports   of  industrial  acci- 

dents. 277. 

265.  Rules  of  practice  of  the  in- 

dustrial accident  board  of 
California.  278. 

266.  Th«  formal  procedure  un- 

der the  act. 

267.  Forms  to  be  used  by  em-      279. 

ployers. 

268.  Form    of    employer's    writ- 

ten acceptance  of  the  pro- 
visions of  the  act.   (a)  280. 

269.  Form    of    employer's    with- 

drawal  of    acceptance    of      281. 
provisions  of  the  act.   (b) 

270.  Form    of    notice    that    em- 

ployer  has    accepted    the       282. 

compensation      provisions 

of  the  act.  (c)  283. 

271.  Form    of    employer's    first 

report  of  accident  to  em-      284. 
ploy 6.  (d) 

272.  Form  of  employer's  supple-      285. 

mental  report  of  accident 

to  employe,  (e)  286. 

273.  Forms  for  employe's. 

274.  Form  of  notice  by  employe 

of  election  not  to  be  sub-      287. 
ject  to   the  provisions  of 
the  act.  (f) 


Form  of  notice  to  employer 
of  claim  for  compensation 
for  injury  under  act.  (g) 

Forms  for  hearings  before 
board. 

Form  of  notice  of  filing  of 
application  for  adjust- 
ment of  claim,  (h) 

Form  of  notice  of  hearing 
of  application  for  adjust- 
ment of  claim,  (i) 

Form  of  subpoena  for  wit- 
ness to  appear  before  in- 
dustrial accident  board, 
(j) 

Forms  to  be  used  by  physi- 
cians. 

Form  of  physician's  report 
of  accident  to  employe, 
(k) 

Form  of  request  for  report 
of  accident.  (1) 

Form  of  request  for  fuller 
report  of  accident,  (m) 

Form  of  notice  to  doctor  to 
file  report,  (n) 

Forms  to  be  used  by  casual- 
ty companies. 

Form  of  first  accident  re- 
port of  casualty  company, 
(o) 

Form  of  supplemental  ac- 
cident report  of  casualty 
company,  (p) 


TABLE  OF  CONTENTS. 


XV11 


CHAPTER  XV. 

THE    NEVADA   WORKMEN'S    COMPENSATION    ACT. 


Sec. 

288.  Nature    and    scope   of   the 

act. 

289.  Procedure — Boards    of   ar- 
bitration. 


Sec. 
290. 


Text  of  the  Nevada  Work- 
men's   compensation    law. 


CHAPTER  XVI. 

THE  KANSAS  WORKMEN'S  COMPENSATION  ACT. 


Sec. 

291.  Nature    and   scope   of   the 
act. 

292.  Text  of  the  Kansas  com- 

pensation   act. 


Sec. 

293.  Formal     procedure     under 

the  act. 

294.  Form   of   election   of   em- 

ployer to  come  within  the 
provisions  of  the  act. 


CHAPTER  XVII. 

THE  NEW  HAMPSHIRE  WORKMEN'S  COMPENSATION  ACT. 


Sec. 

295.  The    nature    and    scope    of 

the  act. 

296.  Text  of  the  New  Hampshire 

compensation  act. 

297.  Administration  of  the  New 

Hampshire  workmen's 
compensation  act. 

298.  Formal    procedure — List   of 

forms. 


Sec. 

299.  Form  of  declaration  of  em- 

ployer,    (a) 

300.  Form   of    report   of   indus- 

trial accident  to  bureau  of 
labor,     (b) 

301.  Form   of   supplemental    re- 

port of  industrial  accident 
to  bureau  of  labor,     (c) 


CHAPTER  XVIII. 

THE  MASSACHUSETTS  WORKMEN'S  COMPENSATION  ACT. 


Sec. 

302.  Nature  and  scope  of  the 
Massachusetts  workmen's 
compensation  act. 

803.  Text  of  the  Massachusetts 
compensation  act. 

304.  Text  of  an  act  to  authorize 
certain  mutual  insurance 
companies  to  transact  the 
business  of  employers' 


Sec. 

liability      insurance,     so- 
called. 

305.  Text  of  an  act  relative  to 
the  insurance  of  com- 
pensation to  employfis  for 
personal  injuries  received 
in  the  course  of  their  em- 
ployment. 


XV111 


TABLE  OF  CONTENTS. 


Sec. 

306.  Text  of  an  act  to  authorize 

certain  advances  from  the 
treasury  of  the  common- 
wealth to  the  Massachu- 
setts employe's'  insur- 
ance association. 

307.  Opinion  of  the  supreme  ju- 

dicial court  sustaining 
constitutionality  of  com- 
pensation act. 

308.  Rules    of     Industrial  Acci- 

dent Board. 

309.  Formal    procedure — List   of 

forms. 

310.  Form     of     notice     to     em- 

ploye's,    (a) 

311.  Form  of  notice  of  claim  of 

common-law  rights,     (b) 

312.  Form  of  notice     of    waiver 

or  rights  under  common 
law  previously  claimed. 
(O 

313.  Form  of  agreement  for  re- 

deeming liability  by  pay- 
ment of  lump  sum.  (d) 

314.  Form  of  notice  that  an  em- 

ployer has  ceased  to  be  a 
subscriber,  (e) 

315.  Form  of  notice  to  industrial 

accident  board  that  an  in- 


Sec. 

jured  employ^  has  refused 
to  submit  himself  to  an 
examination,  (f) 

316.  Form  of  notice  to  employe" 

from  industrial  accident 
board  relative  to  his  re- 
fusal to  submit  himself  to 
an  examination,  (g) 

317.  Form   of  agreement   in   re- 

gard to  compensation. 
(h) 

318.  Form    of    claim    for    com- 

pensation for   injury,     (i) 

319.  Form    of   notice    of    injury. 

(j) 

320.  Form  of  report  of  commit- 

tee on  arbitration,     (k) 

321.  Form  of  application  for  re- 

view of  claim  before  full 
board.  (1) 

322.  Form     of     notice  assessing 

cost  of  proceedings  before 
arbitration  committee  up- 
on party  prosecuting  or 
defending  same  without 
reasonable  grounds,  (m) 

323.  Form  of  receipt  on  account 

of  compensation,     (n) 

324.  Form     of     settlement     re- 

ceipt,   (o) 


THE  LAW 

OF 

COMPENSATION  AND  INSURANCE 

FOR 

INJURIES  TO  WORKMEN 


CHAPTER  I. 

DISTINCTIONS  BETWEEN  THE  COMMON  LAW,  EMPLOYER^ 
LIABILITY  LAWS,  WORKMEN^  INDUSTRIAL  INSURANCE 
LAWS,  AND  WORKMEN'S  COMPENSATION  LAWS  AS  REME- 
DIES FOR  COMPENSATING  WORKMEN  INJURED  IN  THE  DUE 
COURSE  OF  THEIR  EMPLOYMENT. 

Sec.  Sec. 

1.  The   common    law   system    of      3.  The   distinguishing  character- 

employer's  liability  prior  to  istics  of  employer's  liability 

the  employer's  liability  and  laws. 

workmen's  compensation  and  4.  The  modern  conception  of  the 

insurance  laws.  employer's  liability. 

2.  The  system  of  employer's  lia-  5.  The   distinguishing   character- 

bility  prior  to  the  workmen's  istics  of  workmen's  compen- 

insurance  and  compensation  sation  acts. 

acts.  6.  The  distinguishing  character- 

istics of  workmen's  indus- 
trial insurance  laws. 

§  1.  The  common  law  system  of  employer's  lia- 
bility, prior  to  the  liability,  and  compensation  and  in- 
surance laws. — Today,  at  common  law,  the  employer's 
duty  to  his  employe  is  to  use  ordinary  and  reasonable 
care  for  the  safety  of  his  employe  while  he  is  performing 
his  work.  That  duty  includes : 

(a)  The  duty  to  provide  a  reasonably  safe  place  to 
work. 


§  I  WORKMEN  S  COMPENSATION  AND  INSURANCE.  2 

(b)  The  duty  to  provide  reasonably  safe  tools  and 

appliances. 

(c)  The  duty  of  being  reasonably  careful  in  hiring 

agents  and  servants  fit  for  work  they  are  to  do. 

(d)  The  duty  of  providing  suitable  and  reasonable 

rules  for  carrying  on  the  work. 

(e)  The  duty  to  warn  and  instruct  youthful  and  inex- 

perienced servants  as  to  the  dangers  of  the  em- 
ployment. 

If  a  workman  be  injured  by  reason  of  the  failure  of  these 
duties  he  may  recover  from  his  employer  full  compensation 
for  his  injuries,  the  amount  of  damages  to  be  determined  by 
a  jury  in  the  usual  legal  proceedings.  Such  a  right  of  action 
is  based  upon  the  negligence  or  fault  of  the  employer.  This 
is  the  fundamental  principle  of  the  present  common-law 
system  brought  down  from  the  common  law  of  England 
and  which  no  statute  of  States  or  the  Federal  Govern- 
ment had  changed  up  to  the  time  of  the  enactment  of 
compensation  acts. 

The  employer  has,  however,  certain  defenses  to  any  ac- 
tion brought  at  common  law,  as  it  now  exists,  by  an 
employe  who  has  been  injured  in  the  due  course  of  his 
employment,  and  which  constitute  a  special  body  of  so- 
called  judge  made  law. 

(1)     THE  DEFENSE  OF  CONTRIBUTORY  NEGLIGENCE. 

Contributory  negligence  is  the  negligence  of  a  servant 
which  is  a  contributing  and  proximate  cause  of  his  injury, 
and  the  burden  is  generally  upon  the  employe  in  any 
action  for  compensation  for  injuries  received  to  prove 
not  only  the  negligence  of  the  employer,  but  that  he 
himself  was  exercising  ordinary  care  and  was  free  from 
negligence,  directly  contributing  to  the  injury.1 

irThe  reasons  for  this  rule  are  thus  stated  by  Judge  Thompson: 
"The  rule  that  contributory  negligence  bars  a  recovery  is  said 
to  be  founded  on  (1)  the  mutuality  of  the  wrong;  (2)  the  impolicy 


3  DISTINCTIONS  BETWEEN  SYSTEMS.  §  I 

The  employe  injured  by  his  employer's  neglect  is 
therefore  placed  in  the  same  position  as  a  stranger  so 
injured. 

(2)     THE   FELLOW   SERVANT  RULE. 

The  fellow  servant  rule,  as  announced  in  the  earlier  deci- 
sions of  our  Supreme  Courts,  precludes  the  recovery  by 
one  servant  for  any  injury  occasioned  by  the  negligence 
of  another  engaged  in  the  same  general  business,  if 
there  had  been  ordinary  care  and  diligence  observed  by 
the  master  in  the  selection  of  servants.2 

This  fellow  servant  rule  is  a  special  rule  which  applies 
only  to  the  status  of  employment  and  has  its  origin  in  a 
decision  by  Lord  Abinger  in  the  Court  of  Exchequer  in  1837, 
in  the  case  of  Priestly  v.  Fowler  (3  M.  &  W.  1),  and 
finally  settled  in  England  by  the  House  of  Lords  in 
1858  in  Barstonhill  Coal  Co.  v.  Reid  (3  Macq.  House 
of  Lords  Cases,  266).  It  was  followed  in  all  of  the 
states  of  the  union  up  to  the  time  of  the  enactment  of 
employers'  liability  laws.8 

The  Priestly  case,  decided  by  Lord  Abinger,  was  not  a 
case  of  injury  in  a  hazardous  employment  such  as  a  factory 
or  a  railroad,  but  a  simple  case  where  a  butcher's  helper  was 
injured  by  a  wagon  driver  hired  by  the  same  employer.  The 
judge  regarded  it  a  hardship  to  hold  the  butcher  liable  for 
the  injury  which  had  no  real  relation  to  any  fault  of  the 
butcher,  because  the  helper  could  have  guarded  against  the 
injury  as  well  as  the  butcher.  This  hardship  appealed  to 
Lord  Abinger  and  he  decided  in  favor  of  the  butcher. 

Lord  Abinger's  opinion  reads  as  follows:     "It  is  ad- 

of  allowing  a  party  to  recover  for  his  own  wrong;  (3)  the  policy 
of  making  personal  Interests  of  parties  depend  on  their  own  pru- 
dence and  care."  1  Thomp.  Neg.  (2d  ed.),  §  168. 

2  Columbus,  C.  &  I.  C.  R.  Co.  v.  Troesch,  68  III.  545. 

3  See  also  the  case  of  Murray  v.  South  Carolina  Ry.  Co.,  McMul- 
lan's  Law,  (S.  Car.)  385,  where  the  question  was  raised  in  South. 
Carolina  in  1837  and  decided  against  the  employe". 


§  I       WORKMEN'S  COMPENSATION  AND  INSURANCE.  4 

mitted  that  there  is  no  precedent  for  the  present  action  by  a 
servant  against  a  master.  We  are,  therefore,  to  decide  the 
question  upon  general  principles,  and  in  doing  so  we  are  at 
liberty  to  look  at  the  consequences  of  a  decision  the  one  way 
or  the  other. 

"If  the  master  be  liable  to  the  servant  in  this  action  the 
principle  of  that  liability  will  be  found  to  carry  up  to  an 
alarming  extent.  He  who  is  responsible  by  his  general 
duty,  or  by  the  terms  of  his  contract  for  all  the  consequences 
of  negligence  in  a  matter  in  which  he  is  the  principal,  is  re- 
sponsible for  the  negligence  of  all  his  inferior  agents.  If 
the  owner  of  the  carriage  is  therefore  responsible  for  the 
sufficiency  of  his  carriage  to  his  servant,  he  is  responsible  for 
the  negligence  of  his  coachmaker,  or  his  harnessmaker  or 
his  coachman.  The  footman,  therefore,  who  rides  behind 
the  carriage,  may  have  an  action  against  his  master  for  a 
defect  in  the  carriage,  owing  to  the  negligence  of  the  coach- 
maker  or  for  a  defect  in  the  harness,  arising  from  negli- 
gence of  the  harnessmaker,  or  for  drunkenness,  neglect 
or  want  of  skill  in  the  coachman;  nor  is  there  any  reason 
why  that  principle  should  not,  if  applicable  in  this  class  of 
events,  extend  to  many  others.  The  master,  for  example, 
would  be  liable  to  the  servant  for  the  negligence  of  the 
chambermaid,  for  putting  him  into  a  damp  bed ;  for  that  of 
the  upholsterer  for  sending  him  a  crazy  bedstead;  whereby 
he  was  made  to  fall  down  while  asleep  and  injured  himself; 
for  the  negligence  of  the  cook  in  not  properly  cleaning  the 
copper  vessels  used  in  the  kitchen;  of  the  butcher,  in  sup- 
plying the  family  with  meat  of  a  quality  injurious  to  the 
health;  of  a  builder  for  a  defect  in  the  foundation  of  the 
house,  whereby  it  fell  and  injured  both  the  master  and  the 
servant  by  the  ruins. 

"The  inconvenience,  not  to  say  the  absurdity,  of  these 
consequences  affords  sufficient  argument  against  the  ap- 
plication of  this  principle  to  the  present  case.  But,  in 
truth,  the  mere  relation  of  the  master  and  the  servant 


5  DISTINCTION   BETWEEN   SYSTEMS.  §  2 

never  can  imply  an  obligation  on  the  part  of  the  master 
to  take  more  care  of  the  servant  than  he  may  reason- 
ably be  expected  to  do  of  himself.  He  is  no  doubt 
bound  to  provide  for  the  safety  of  his  servant,  in  the 
course  of  his  employment,  to  the  best  of  his  judgment, 
information  and  belief.  The  servant  is  not  bound  to 
risk  his  safety  in  the  service  of  his  master,  and  may,  if 
he  thinks  fit,  decline  any  service  in  which  he  reasonably 
apprehends  injury  to  himself;  and  in  most  of  the  cases 
in  which  danger  may  be  incurred,  if  not  all,  he  is  just  as 
likely  to  be  acquainted  with  the  probability  and  extent 
of  it  as  the  master."4 

3.     THE  DEFENSE  OF  ASSUMPTION  OF  RISK. 

The  so-called  "assumption  of  risk  rule"  is  closely  related 
to  the  fellow  servant  rule,  the  former  rule  really  embracing 
the  latter.  Under  this  principle  every  risk  which  an 
employment  involves  after  a  master  has  done  every- 
thing that  he  is  bound  to  do  for  the  purpose  of  securing 
the  safety  of  his  servants  (including  the  employment 
of  other  servants)  is  assumed,  as  a  matter  of  law,  by 
each  of  those  servants.  The  risks  which  are  thus  con- 
>  sidered  to  have  been  assumed,  are  those  which  are  com- 
monly described  as  "ordinary."  It  is  the  settled  doc- 
trine of  the  law  that  the  servant  may  reasonably  be 
presumed  to  foresee  that  he  will  be  exposed  to  the  ordi- 
nary risks  of  the  business  in  which  he  engages,  although 
it  may  involve  unusual  or  extraordinary  hazards. 

The  courts  are  wont  to  say  that  there  is  an  "assump- 
tion of  the  risk,"  or  an  "implied  contract,"  however,  in 
the  average  case  and  that  is  merely  a  formula  of  words 
which  the  rule  of  the  law  happens  to  take.  Even  in 
dangerous  employments  there  is  usually  no  contract  be- 
tween the  employer  and  the  workman  concerning  the 

4  PrlestJey  v.  Fowler,  3  M.  &  W.  1. 


§  2       WORKMEN'S  COMPENSATION  AND  INSURANCE.  6 

risk.     Hazard  of  an  employment  does  not  fix  the  price 
of  wages,  they  are  fixed  by  competition. 

The  common  law  system  of  employers'  liability  has 
been  developed  along  the  same  lines  in  the  United 
States  and  Great  Britain,  during  the  period  in  which 
modern  manufacturing  with  its  factory  system  was  re- 
placing hand  labor.  It  has  been  well  said  that  "the  de- 
velopment has  been  profoundly  influenced  by  the  belief 
of  the  courts  that  the  necessity  of  profit  in  industrial 
enterprises  demanded  protection  even  at  the  expense 
of  damage  to  certain  industries. "4a 

§  2.  The  system  of  employer's  liability  prior  to  the 
insurance  and  compensation  acts. — The  system  of  lia- 
bility of  employers  in  the  States  of  the  United  States 
and  the  United  States,  speaking  generally,  is  founded 
upon  fault.  That  is,  an  employe  who  is  injured  while 
employed  can  only  recover  damages  from  his  employer 
when  the  jury  finds  that  the  employer  was  negligent 
and  that  his  negligence  caused  the  accident.  Even 
then  the  employe  may  not  recover  in  case  he  was 
negligent  and  his  negligence  contributed  to  the  cause  of 
the  injury,  or  the  negligence  of  a  fellow  workman  caused 
the  injury,  or  he  assumed  that  risk  while  working. 

For  injury  due  to  the  inherent  hazards  of  the  em- 
ployment and  accidents  due  to  an  act  of  God  or  for 
which  the  blame  can  not  be  fixed,  the  employer  is  not 
liable. 

These  fundamental  principles  of  the  common  law 
were  accepted  and  enforced  by  all  the*  courts  of  this 
country  until  the  enactment  of  Workmen's  Insurance 
and  Compensation  Laws  by  Montana,  New  York,  Wash- 
ington, Ohio,  Wisconsin,  Massachusetts,  New  Jersey, 

*a  See  Report  of  the  Employer's  Liability  Commission  of  Ohio, 
Part  I,  p.  XVIII. 


7  DISTINCTION  BETWEEN   SYSTEMS.  §  3 

Illinois,  Kansas,  California,  Michigan,  Nevada,  New 
Hampshire,  Rhode  Island,  Maryland,  Arizona  and  the  Fed- 
eral Government. 

Prior  to  the  enactment  of  Workmen's  Insurance  and 
Compensation  Acts,  the  legal  relation  of  the  employer 
and  his  employes  in  the  States  and  the  United  States 
were  governed  by  the  common  law  as  modified  by  statu- 
tory liability  laws. 

Although  there  have  been  enacted, — chiefly  during 
the  last  ten  years, — Employer's  Liability  Laws  by  the 
United  States  and  many  of  the  States,  they  have  not 
essentially  changed  the  fundamental  principles  of  the 
common  law  in  this  respect.  The  legal  relation  of  em- 
ployer and  employe  at  common  law  in  both  England  and 
United  States  prior  to  1837  in  no  way  differed  from  that 
of  a  stranger  and  there  were  no  special  rules  respecting 
employers'  liability.  If  A  was  injured  on  account  of 
B's  neglect  and  not  by  his  own  fault,  B  was  bound  to 
compensate  A  whether  A  was  an  employe  or  not.  Since 
1837  the  Courts  have*  made  special  rules  respecting  the 
liability  for  accidents  in  employment.  The  reason  which 
the  courts  have  assigned  for  this  special  body  of  judge 
made  law  is  that  they  are  exercising  their  duty  in  inter- 
preting the  contract  of  employment.  It  is  to  be  noted 
that  this  body  of  purely  judge  made  law  was  in  process 
of  making  for  about  seventy  years  before  compensation 
acts  'of  any  kind  were  passed  in  the  States  of  the  United 
States,  or  by  the  Federal  government. 

§  3.  The  distinguishing  characteristics  of  employ- 
er's liability  laws. — It  should  be  noted,  that  for  two 
hundred  and  fifty  years  after  the  Magna  Charta  was 
adopted,  it  was  the  law  of  England  that  one  was 
liable  to  those  injured  by  his  acts  or  by  the 
acts  of  persons  or  things  for  which  he  was  responsible 
whether  the  cause  of  the  injury  was  attributable  to  the 
fault  of  the  defendant  or  not.  The  first  suggestion  that 


§  3       WORKMEN'S  COMPENSATION  AND  INSURANCE.  8 

freedom  from  fault  might  excuse  in  such  a  case  was 
made  in  1466,  but  this  rule  did  not  become  fully  settled 
in  England  until  1891.  In  America  there  were  decisions 
to  this  effect  from  1820  and  after,  the  most  important 
decisions  having  been  made  between  1830  and  1850.5 

In  a  later  chapter  on  The  Economic  Basis  of  Work- 
men's Insurance  and  Compensation  Acts,6  it  is  shown 
that  an  injured  workman  does  not  on  the  old  idea  of 
fault  have  a  cause  of  action,  in  theory,  against  his  em- 
ployer, in  to  exceed  eighteen  per  cent  of  all  the  cases, 
taken  collectively,  and  in  practice  this  per  cent  falls  be- 
low twelve  per  cent.  Impressed  by  this  hardship  upon 
injured  workmen  and  their  dependents,  congress  and 
the  legislatures  of  some  thirty  of  the  States  of  the  United 
States  have  enacted,  within  the  last  ten  years,  a  number 
of  employer's  liability  acts  which  have  largely  abrogated 
the  common  law  defenses,  set  out  in  the  preceding  sec- 
tion. 

The  following  States  have  by  statute  abrogated  the 
defense  of  fellow  servant  either  by  general  statute  or  in 
particular  industries  (usually  railroads) :  Arkansas, 
Colorado,  Florida,  Georgia  (since  1855),  Iowa,  Kansas, 
Minnesota,  Missouri,  Montana,  Nebraska,  Nevada, 
North  Carolina,  North  Dakota,  Oklahoma,  South  Da- 
kota, Texas,  Wisconsin.6*  The  Colorado  statute  is  the 
most  striking  example  of  this  class  since  it  completely 
eliminates  the  defense  of  fellow  servant  in  every  em- 
ployment.7 

5  See  "The  New  York  Workmen's  Compensation  Act  Decision" 
by  Dean  James  Parker  Hall,  in  The  Journal  of  Political  Economy, 
Vol.  XLV,  No.  8,  October,  1911,  p.  698. 

6  Chapter  V. 

6aThe  best  available  summary  of  the  laws  of  the  other  states 
appears  in  the  Bulletin  of  the  United  States  Bureau  of  Labor,  No. 
74  of  January,  1908. 

7  This  statute  has  been  upheld  as  constitutional  in  Vindicator, 
Min.  Co.  v.  Firstbrook,  36  Colo.  498. 


9  DISTINCTION   BETWEEN   SYSTEMS.  §  4 

In  the  following  States  the  defense  of  fellow  servant 
is  modified  without  being  abrogated:  California,  Missis- 
sippi, Maryland,  Ohio,  Oregon,  South  Carolina,  Utah,. 
Virginia. 

In  some  or  all  of  the  States  named,  modifications  of 
the  common  law  have  been  adopted  along  the  following 
lines  (by  statutes  or  by  decision  as  to  the  common  law)  : 

(1)  Adopting  the   doctrine   of  comparative   negli- 
gence which  allows  a  recovery  notwithstanding  contribu- 
tory negligence,   provided   it   is   less   in   degree   than   the 
negligence  of  the  master. 

(2)  Changing  the  burden  of  proof  of  contributory 
negligence,  from  the  plaintiff  to  the  defendant,  which 
has  always  been  the  rule  in  the  Federal  Courts  and  some 
States. 

(3)  Taking  away  the  defense  of  the  assumption  of 
risks  when  the  risk  assumed  was  caused  by  the  fault  or 
negligence  of  the  employer. 

§  4.  The  modern  conception  of  employer's  lia- 
bility.— The  old  methods  of  manufacture,  and  even 
many  of  the  old  industries,  have  become  obsolete  and 
have  been  superseded  by  rapid,  complicated  and  hazard- 
ous methods  growing  out  of  improvements  directed  to- 
wards the  cheapening  of  products,  and  the  ancient  re- 
lation of  employer  and  employe,  under  which  the  em- 
ploye generally  worked  beneath  the  eyes  of  the  em- 
ployer, has  ceased  to  exist. 

In  modern  times  the  employer  has  little  personally 
to  do  with  the  employe,  and  necessarily  their  mutual  per- 
sonal interest  is  no  longer  the  same. 

Notwithstanding  the  great  changes  in  the  character 
of  the  employment  and  in  the  hazards,  there  has  been 
for  years  practically  no  change  in  the  law  governing  the 
relation;  so  that  thoughtful  persons  are  almcst  unani- 
mously of  the  opinion  that  the  law  now  governing  em- 


§  4       WORKMEN'S  COMPENSATION  AND  INSURANCE.          10 

ployer  and  employe,  with  respect  to  injuries  done  to  the 
latter,  in  hazardous  industrial  occupations,  is  unjust  to 
both  employer  and  employe  and  a  source  of  unfair  op- 
pression to  the  employer  and  a  cause  of  unmerited  hard- 
ship to  the  employe. 

Many  suggestions  have  been  made  as  to  a  remedy, 
but  commissions  on  Employer's  Liability  are  strongly 
of  the  opinion  that  the  industry  itself  should  bear  the 
burden  and  not  the  employe.  The  industry  now  bears 
the  burden  of  the  wearing  out  and  destruction  of  ma- 
chinery necessarily  resulting  from  its  use,  and  civiliza- 
tion now  demands  that  the  industry  bear  also  the  bur- 
den of  the  wearing  out  and  destruction  of  the  efficiency 
of  the  human  machines  without  which  the  industry  could 
not  survive.  In  bringing  this  about,  radical  changes  in 
the  law  governing  employer  and  employe  must  be  made. 
When  a  man's  life  is  lost,  or  his  efficiency  decreased 
through  injury  in  his  employment,  humanity  demands 
that  his  dependents  in  case  of  his  death,  and  he  himself 
in  case  of  injury,  shall  be  cared  for.  This  care  must  be 
given  either  by  the  community  at  large,  or  by  the  in- 
dustry in  which  he  was  engaged  when  injured. 

We  have  not  progressed  so  far  in  this  country  that 
the  State  will  care  for  everybody  except  for  charity's 
sake;  but  as  the  injured  employe  must  be  cared  for,  and 
as  the  ancient  legal  fiction  of  assumption  of  the  risk  in 
the  dangerous  employment  of  modern  industry  is  unjust 
to  the  employe,  it  seems  fitting  that  some  device  spread- 
ing this  burden  throughout  the  whole  industry  shall  be 
created,  and  the  employer  protected  from  oppression  by 
law  suits  and  prolonged  litigation,  and  the  employer  re- 
lieved from  the  necessity  of  seeking  redress  in  the  courts 
for  loss  of  ability  to  earn  a  livelihood,  of  which  he  has 
been  deprived  by  accident.  Nor  is  this  in  any  sense 
charity,  but  only  simple  justice. 

A  change  in  the  law  should  insure  to  the  employe 


II  DISTINCTION   BETWEEN    SYSTEMS.  §  5 

•quick,  practically  immediate  relief  by  way  of  support  and 
medical  attendance,  coupled  with  an  assurance  of  future 
support. 

Some  objection  might  be  made  to  imposing  this 
•obligation  upon  the  industry,  upon  the  ground  that  the 
employe  should  bear  his  share  of  the  burden,  in  view 
of  the  fact  that  such  a  scheme  is  practically  in  the  nature 
of  accident  insurance ;  but  it  seems  more  feasible  to  im- 
pose the  whole  burden  upon  industry  because,  like  all 
the  other  losses  growing  out  of  depreciation  in  machin- 
ery and  in  the  plant  and  other  expenses,  this  added 
charge  will  be  taken  care  of  in  the  prices  obtained  by 
the  employer  for  the  products  of  the  industry.8 

§  5.     The    distinguishing    characteristics    of   work- 
men's   compensation    acts. — During    the    years    1910, 
1911,  1912,  there  have  been  passed  Workmen's  Com- 
pensation Acts  in  eleven  states  of  the  United  States  and 
fay  the  United  States  government  as  follows: 

The  New  York  Law  enacted  in  session  of  1910  and 
held  unconstitutional  March  24,  1911 ; 

The   New  Jersey  Law   approved  April   4,    1911,   and 
took  effect  July  4,  1911; 

The  Wisconsin  Law  passed  session  of  1911  and  be- 
came operative  September  1,  1911; 

The  California  Law  enacted  session  of  1911  and  be- 
came operative  September  1,  1911; 

The  Kansas  Law  enacted  by  the  session  of  1911  and 
took  effect  January  1,  1912; 

The  Illinois  Law  passed  at  the  session  of  1911  and 
became  operative  May  1,  1912; 

The  Michigan  Law  passed  at  the  session  of  1912  and 
took  effect  September  1,  1912; 

The  Arizona  Act  took  effect  September  i,  1912. 

8  Report  of  Employer's  Liability  Commission  of  Ohio,  Part  I,  p. 
XV. 


§  6       WORKMEN'S  COMPENSATION  AND  INSURANCE.          12 

The  Nevada  Law  passed  at  session  of  1911  and  be- 
came operative  July  1,  1911 ; 

The  New  Hampshire  Law  approved  April  15,  1911, 
and  took  effect  January  1,  1912; 

The  Rhode  Island  and  Providence  Plantation  Law 
approved  April  29,  1912,  and  took  effect  October  lr 
1912,  and 

The  Federal  Compensation  Acts  of  May  30,  1908; 
March  4,  1911;  March  n,  1912,  to  provide  compensation 
to  injured  government  employes  on  and  after  August 
1,  1908. 

The  employer  is  personally  liable  for  the  compensa- 
tions to  be  paid  an  injured  worker  under  both  systems,  Em- 
ployers' Liability  Laws  and  Workmen's  Compensation  Acts. 
In  the  case  of  Compensation  Acts,  however,  the  only 
negligence  recognized  on  the  part  of  either  the  employer 
or  employe,  speaking  generally,  is  that  of  wilful  negli- 
gence. Where  the  employer  is  guilty  of  this  form  of 
negligence,  he  is  penalized;  where  the  wilful  negligence 
is  that  of  the  employe,  he  is  denied  his  compensation  or 
is  penalized  or  has  his  compensation  reduced.  In  com- 
pensation acts  the  amount  of  the  compensation  is  deter- 
mined within  a  maximum  and  minimum  limit  by  speqi- 
fied  schedules  of  compensation  fixed  in  the  law  and  are 
graded  on  a  basis  of  a  certain  percentage  of  the  loss  or 
impairment  of  the  injured  worker's  average  weekly 
wage.  Jury  trials  are  either  largely  or  wholly  eliminated, 
and  the  compensation  to  which  the  injured  worker  is 
entitled  under  the  act  is  determined  by  a  board  of  arbi- 
tration, a  judge  of  some  court  or  a  board  of  awards  cre- 
ated or  specified  by  the  act. 

§  6.  The  distinguishing  characteristics  of  work- 
men's industrial  insurance  laws. — Workmen's  Indus- 
trial Insurance  Acts  have  been  passed  in  five  States  as 
follows : 


J3  DISTINCTION   BETWEEN   SYSTEMS.  §  6 

The  Ohio  Act  enacted  in  May,  1911,  and  became  oper- 
ative January  1,  1912; 

The  Washington  Act  was  passed  March,  1911,  and  be- 
came operative  October  1,  1911: 

The  Massachusetts  Law  approved  July  28,  1911,  and 
took  effect  July  1,  1912;  and 

The  Montana  Mining  Law  approved  March  4,  1909, 
and  declared  unconstitutional  by  the  Supreme  Court  of 
Montana,  November,  1911. 

The  Maryland  Act.  became  operative  April  15,  1912. 

The  enactment  of  Compensation  Acts  and  Workmen's 
Industrial  Insurance  Laws,  in  particular,  introduce  reme- 
dies for  the  compensation  of  injured  workmen,  which  on 
principle  are  new  to  the  jurisprudence  of  the  United  States. 

There  are  fundamental  differences  between  the  prin- 
ciples of  Workmen's  Industrial  Insurance  and  those  of 
Employer's  Liability  Laws  or  Compensation  Acts  of  the 
type  of  the  English,  New  York  or  Wisconsin  Acts.  The 
injured  workman's  claim  under  a  state  insurance  act  is 
against  a  fund  which  is  created  by  contributions  paid  by 
employers,  employes  and  the  State  or  by  any  of  them, 
in  the  form  of  an  insurance  premium  which  is  collected 
"by  the  taxing  power  of  the  State  through  the  exercise  of 
its  police  power.  The  employer's  liability  to  his  em- 
ployes on  account  of  personal  injuries  occurring  in  the  due 
course  of  their  employment,  is  discharged  when  he  has 
paid  the  premiums  provided  by  the  act.  The  right  of 
trial  by  jury  is  entirely  eliminated  in  such  cases,  except- 
ing the  case  where  the  employe  is  denied  compensation 
of  any  kind  and  in  that  case  he  may  sue  the  board  of 
administration  created  by  the  act  and  have  his  case  tried 
before  a  jury  as  heretofore  but  can  not  sue  his  employer. 
No  negligence  of  any  kind  is  recognized  either  on  the 
part  of  the  employer  or  employe,  speaking  generally, 
excepting  the  wilful  negligence  on  the  part  of  either. 
In  case  the  employer  caused  the  accident  by  wilful  act  or 


§  6       WORKMEN'S  COMPENSATION  AND  INSURANCE.          14, 

by  disregarding  Factory  Inspection  acts  and  orders,  he 
is  subjected  to  some  kind  of  penalty,  and  in  case  the  in- 
jured worker  wilfully  caused  the  accident  for  the  pur- 
pose of  obtaining  compensation,  he  is  denied  any  com- 
pensation or  has  it  reduced  or  is  penalized.  The  com- 
pensation is  paid  in  installments  and  based  upon  a  cer- 
tain percentage, — usually  50  to  60  per  cent. — of  the 
impairment  of  wages  caused  by  the  accident.  The  act  usual- 
ly fixes  the  length  of  time  that  such  compensation  may  run. 
and  also  a  maximum  and  minimum  total  compensation.  In 
the  enactment  of  these  statutes  the  State  exercises  its  police 
power  for  the  protection  of  the  peace,  safety  and  general 
welfare  of  the  public.9 

The  primary  object  of  industrial  insurance  for  work- 
men is  to  provide  a  reasonable  compensation  which  shall 
be  paid  without  fail  and  at  a  minimum  cost  of  adminis- 
tration, to  the  injured  worker  and  his  dependents,  at 
stated  intervals,  so  that  his  dependents  shall  not,  in 
case  they  are  minors,  suffer  in  attaining  a  normal  de- 
velopment which  is  necessary  for  self-support,  and  in 
order  that  neither  the  injured  workman  or  his  depend- 
ents shall  become  public  charges,  by  reason  of  bodily  in- 
juries which  the  worker  received  in  the  due  course  of  his 
employment. 

From  the  standpoint  of  the  public,  the  effect  of  a 
serious  bodily  injury  received  by  such  a  workman,  is 
the  same  whether  the  cause  of  the  injury  is  attributable 
to  the  negligence  of  the  employer  or  to  that  of  his  em- 
ploye, or  that  of  a  fellow-workman,  or  is  caused  by  an 
act  of  God.  It  is  assumed  that  the  case  is  very  rare  that 
either  the  employer  or  his  employe  will  wilfully  cause 
an  injury  covered  by  such  a  law. 

9  For  full  discussion  of  Insurance  acts  see  Chapters  IV,  VII,  X, 
XI,  XVII. 


CHAPTER  II. 

HISTORICAL  SKETCH  OF  DEVELOPMENT  OF  WORKMEN'S 
INDUSTRIAL  INSURANCE  AND  WORKMEN'S  COMPENSA- 
TION LAWS  IN  THE  UNITED  STATES. 

Sec.  Sec. 

7.  Inception    of    movement    for     11.  Conclusions   of   the   Chicago 

these  laws.  conference. 

8.  Previous  investigation  of  the     12.  The  work  of  the  State  corn- 

problem,  missions. 

9.  The    Chicago    conference    of      13.  Executive    recommendations. 

employer's  liability  and  work-  14.  The  Federal  employer's  lia- 
men's  compensation  com-  bility  and  workmen's  com- 
missions, pensation  commission. 

10.  Subjects  discussed. 

§  7.  Inception  of  movement  for  these  laws. — The 
movement  for  the  enactment  of  more  just  and  humane 
laws  to  take  the  place  of  the  outgrown  common-law 
remedy  for  the  compensation  of  workmen  for  injuries 
received  in  the  course  of  their  employment  became  wide- 
spread in  the  United  States  about  the  beginning  of  this 
century.  The  movement  received  its  first  legislative 
recognition  in  New  York  when  the  Legislature  of  that 
state  passed  an  act1  which  authorized  the  appointment 
of  a  commission  "to  inquire  into  the  working  of  a  law 
in  the  State  of  New  York  relative  to  the  liability  of  em- 
ployers to  employes  for  industrial  accidents  and  into  the 
comparative  efficiency,  cost,  justice,  merit  and  defects  of 
the  laws  in  other  states  and  countries  relative  to  the 
same  subject  and  as  to  causes  of  accidents  to  employes." 

Pursuant  to  the  statute  a  commission  of  fourteen 
members  was  appointed  in  May,  1909,  three  from  the 
Senate,  five  from  the  Assembly  and  six  from  industrial 
and  professional  walks  of  life,  all  of  whom  were  eminent- 

1  Laws  1909,  eh.  518. 

15 


§  8        WORKMEN'S  COMPENSATION  AND  INSURANCE.         16 

ly  qualified  for  the  work  to  be  done.  This  commission 
made  its  report  to  the  legislature  in  March,  1910,  and 
the  bills  reported  by  the  commissioner  were  virtually 
adopted  by  the  legislature  with  but  few  dissenting 
votes,  there  being  only  four  dissenting  votes  in  the 
House  against  it.  The  bill  is  in  the  form  of  a  compul- 
sory workmen's  compensation  law  affecting  eight  classes 
of  hazardous  employments.  A  copy  of  the  law  and  the 
opinion  of  the  Court  of  Appeals  holding  the  act  uncon- 
stitutional are  given  in  a  later  chapter.2  The  conclusions 
of  the  report  of  the  New  York  commission  respecting 
the  important  economic  and  sociological  principles  of 
law  involved  in  their  investigations  are  fully  set  forth  in 
this  opinion. 

§  8.  Previous  investigation  of  the  problem. — Every 
civilized  nation  in  Europe  and  many  other  nations  in 
other  parts  of  the  world  except  the  United  States  have 
discarded  the  old  system  of  Employer's  Liability  based 
upon  fault  and  substituted  a  system  under  which  every 
industry  bears  the  burden  of  relieving  the  distress  caused 
by  injuries  to  workers  in  any  given  industry  practically 
without  litigation.  The  German  system  of  insuring  the 
workers  in  all  of  its  industries  against  sickness,  accidents 
and  old  age,  was  inaugurated  during  the  period  from 
1883  to  1887,  a  full  discussion  of  which  will  be  found  in 
a  later  chapter.3 

Great  Britain  enacted  her  Compensation  Act  in 
1897  and  the  same  was  amended  and  broadened  in  its 
scope  in  1900,  1906  and  supplemented  in  March,  1912  by 
David  Lloyd-George's  Insurance  Law  against  sickness, 
old-age  and  out-of-work.3a  The  prime  mover  in  the  adop- 
tion of  the  German  system  was  Prince  Bismarck.  In 

2  See  Chapter  VI. 

3  See  Chapter  IV. 

3*  National  Insurance  Act,  1911,  1,  2  Geo.  5,  ch.  55. 


17  DEVELOPMENT  IN  UNITED  STATES.  §  8 

England  these  laws  were  ably  championed  by  Lord 
Salisbury  and  Mr.  Chamberlin. 

The  subject  first  attracted  the  attention  of  legislative 
agents  in  the  United  States  in  1893  when  the  investiga- 
tion of  the  German  system  by  John  Graham  Brooks  was 
published  in  The  Fourth  Special  Report  of  the  Com- 
missioner of  Labor  of  the  United  States,  Carroll  D. 
Wright.  In  1898  William  Franklin  Willoughby  pub- 
lished a  careful  study  of  foreign  industrial  insurance,  and 
in  1900  the  report  of  the  Commissioner  of  Labor  of  New 
York4  contained  an  intelligent  study  and  report  upon  the 
experience  of  European  nations  with  this  kind  of  insur- 
ance and  compensation  for  injured  workers.  The  Com- 
mission which  was  appointed  to  investigate  the  subject 
in  Massachusetts  in  1904,  recommended  the  adoption  of 
a  plan  modeled  after  the  English  Compensation  Act  of 
1897,  but  the  bill  reported  by  the  commission  was  not 
passed.  A  commission  in  Illinois  recommended  a  work- 
men's compensation  law  of  a  similar  nature  in  1907. 
This  bill  in  like  manner  failed  of  passage.  A  commis- 
sion was  appointed  in  Connecticut  in  1908  to  investigate 
the  same  subject  but  it  was  unable  to  reach  any  definite 
conclusions. 

During  the  year  1910  congress  and  the  legislatures  of 
Massachusetts,  Minnesota,  New  Jersey,  Connecticut, 
Ohio,  Illinois,  Wisconsin,  Montana,  and  Washington 
authorized  the  creation  of  commissions  to  investi- 
gate employers  liability  laws  and  the  various  plans  for 
the  compensation  of  injured  workmen,  with  the  result 
that  commissions  were  appointed  in  all  of  these  states 
and  by  July,  1911,  were  engaged  in  their  investigations. 

§  9.  The  Chicago  conference  of  employer's  liability 
and  workmen's  compensation  commissions. — In  1910 

4  Senate  Documents,  123d  Session,  1900,  Vol.  10,  Part  II,  written 
by  Adna  F.  Weber. 

2~ BOYD  VV  C 


§  9        WORKMEN'S  COMPENSATION  AND  INSURANCE.         18 

there  was  held  in  Chicago  a  Conference  of  Commission- 
ers on  Compensation  for  Industrial  Accidents  from 
United  States  government,  Illinois,  Massachusetts, 
Minnesota,  Montana,  New  Jersey,  New  York,  Ohio, 
"Washington,  Wisconsin,  Connecticut  and  the  committee 
on  Uniform  State  Laws  and  United  States  Bureau  of 
Labor.  This  conference  met  November  10,  1910,  and 
remained  in  session  for  three  days.  Its  officers  were  H. 
V.  Mercer,  of  Minneapolis,  chairman,  and  Amos  T.  San- 
ders, Clinton,  Mass.,  secretary.  The  various  commis- 
sions and  their  membership  were  as  follows : 
United  States  Employers'  Liability  Commission: 

William  Warner,  U.  S.  S.,  Chairman;  Charles  J. 
Hughes,  Jr.,  U.  S.  S. ;  William  G.  Brantley,  M.  C. ; 
Edwin  Denby,  M.  C. ;  W.  C.  Brown,  President  N.  Y. 
Central  R.  R. ;  D.  L.  Cease,  Editor  The  Railroad 
Trainman;  Launcelot  Packer,  Secretary. 
Illinois  Employers'  Liability  Commission,  317  Fisher 

Building,  Chicago,  111. : 

Charles  Piez,  Chairman;  *Edwin  R.  Wright,  Secre- 
tary; Samuel  A.  Harper,  Attorney;  Mason  B.  Star- 
ring; *E.  T.  Bent;  M.  J.  Boyle;  Patrick  Carr;  John 
Flora;  *George  Golden;  R.  E.  Conway,  East  St. 
Louis,  111.;  Daniel  J.  Gorman,  Peoria,  111.;  P.  A. 
Peterson,  Rockford,  111. 

Massachusetts  Commission  on  Compensation  for  Indus- 
trial Accidents,  State  House,  Boston,  Mass.: 
*James  A.   Lowell,   Chairman,   Boston;   *Amos   T. 
Saunders,   Secretary,   Clinton;   *Magnus   W.   Alex- 
ander, Boston;  *Henry  Howard,  Boston;  *Joseph  A. 
Parks,  Fall  River;  *Carroll  W.  Doten,  Chief  Investi- 
gator, Boston. 
Minnesota  Employes'  Compensation  Commission: 

*H.  V.  Mercer,  Minneapolis,  Minn.;  *Geo.  M.  Gil- 
lette, Minneapolis,  Minn. ;  *W.  E.  McEwen,  St.  Paul, 
Minn. 


19          DEVELOPMENT  IN  UNITED  STATES.          §  9 

Employers'  Liability  Commission  of  Montana: 

*Judge  W.  L.  Holloway,  Chairman,  Helena,  Mont.; 

Neill  Collins,  Anaconda,  Mont. ;  J.  C.  Loweny,  Butte, 

Mont.;  J.   H.   Hall,   Helena,   Mont.;   H.   G.   Miller, 

Kalispell,  Mont. ;  C.  W.  Goodale,  Butte,  Mont. ;  J.  E. 

McNally,  Butte,  Mont.;  W.  F.  Meyer,  Deer  Lodge, 

Mont. 
New  Jersey  Employers'  Liability  Commission: 

*Wm.  B.  Dickson,  President,  New  York,  N.  Y.;  J. 

William  Clark,  Newark,  N.  J. ;  John  T.  Cosgrove, 

Elizabeth,  N.  J. ;  Samuel  Botterill,  East  Orange,  N. 

J.;  Walter  E.  Edge,  Atlantic  City,  N.  J.;  Edw.  K. 

Mills,  Morristown,  N.  J. ;  *Dr.  Albert  A.  Snowden, 

Secretary,  Roselle  Park,  N.  J. 

New  York  Commission  on  Employers'  Liability,  Etc., 
Metropolitan  Life  Building,  New  York: 

*J.    Mayhew    Wainwright,    Chairman;    Henry    R. 

Seager,  Vice-Chairman;  Frank  C.  Platt;  Howard  R. 

Bayne;  Alfred  D.  Lowe;  George  A.  Voss;  Frank  B. 

Thorn;    Cyrus   W.    Phillips;    Edward    D.   Jackson; 

George  W.  Smith;  Philip  Titus;  Otto  M.  Eidlitz; 

John    Mitchell;    Joseph    P.    Cotton,    Jr.,    Counsel; 

Crystal  Eastman,  Secretary. 
Employers'  Liability  Commission  of  Ohio: 

*James  Harrington  Boyd,  Chairman,  Toledo,  Ohio; 

J.  W.  Perks,  Springfield,  Ohio ;  *W.  J.  Rohr,  Cincin- 
nati, Ohio;   *W.  J.   Winans,   Galion,   Ohio;   *J.   P. 

Smith,  Cleveland,  Ohio. 
Commission  on  Compensation  for  Industrial  Accidents 

of  Washington: 

Harold  Preston,   Counsel,  Seattle,  Wash.;  Paul  E. 

Page,  E.  S.  Jones,  J.  A.  Falconer,  Clarence  Parker, 

Jas.  Anderson,  George  Von  Eschen,  F.  B.  Hubbard, 

Peter  Henretty,  J.  H.  Wallace. 
Wisconsin  Industrial  Insurance  Committee: 

*A.  W.  Sanborn,  Chairman,  Ashland,  Wis. ;  E.  T. 


§  io    WORKMEN'S  COMPENSATION  AND  INSURANCE.       20 

Fairchild,  Milwaukee,  Wis. ;  John  J.  Blaine,  Boscobel, 
Wis. ;  Wallace  Ingalls,  Racine,  Wis. ;  C.  B.  Culbert- 
son,  Stanley,  Wis. ;  Walter  D.  Egan,  Superior,  Wis. ; 
George  G.  Brew,  West  Milwaukee,  Wis. ;  *Paul  J. 
Watrous,  Secretary. 

Connecticut  Special  Delegate: 

*Walter  S.  Schutz,  Hartford,  Conn. 

Special  Committee  on  Uniform  Laws  to  Prepare  a  Uni- 
form Workmen's  Compensation  Law: 
*Hollis  R.  Bailey,  Chairman,  19  Congress  Street, 
Boston;  Charles  Thaddeus  Terry,  Secretary,  100 
Broadway,  New  York;  *Aldis  B.  Browne,  1419  F 
Street,  N.  W.,  Washington,  D.  C. ;  John  R.  Hardin, 
Prudential  Building,  Newark,  N.  J. ;  Peter  W.  Meld- 
rim,  15  Bay  Street,  West,  Savannah,  Ga. ;  George 
Whitelock,  1407  Continental  Trust  Building,  Balti- 
more, Md. ;  *John  H.  Wigmore,  Dean,  Northwestern 
University  School  of  Law,  Northwestern  University 
Building,  Chicago,  111. 

United  States  Bureau  of  Labor: 

*Charles  P.  Neill,  Commissioner  of  Labor,  Washing- 
ton, D.  C. ;  *L.  W.  Chaney.4a 

§  10.  Subjects  discussed. — The  work  of  this  con- 
ference covered  seven  sessions  during  which  were  dis- 
cussed the  following  fourteen  propositions  relating  to 
workmen's  compensation : 

1.  What  employments  shall  the  act  cover? 

2.  Shall    all   injuries    be    covered,    irrespective    of 
negligence  ? 

3.  Shall  all  persons  engaged  in  such  employments 
be  included? 

4.  Shall  compensation  be  paid  in  a  lump  sum  or  in 
installments? 

5.  Amount  and  duration  of  compensation? 

4aThe  starred  (*)  members  were  present  at  Conference. 


21  DEVELOPMENT  IN  UNITED  STATES.  §  II 

6.  Length  of  waiting  period? 

7.  Shall  dependents  include  aliens  and  illegitimate 
relations? 

8.  Shall  employes  contribute? 

9.  Shall  it  be  permissible  for  employers  to  substi- 
tute voluntary  schemes? 

10.  Method  of  determination  of  controversies? 

11.  Nature  of  scheme:     Compensation,  insurance, 
or  State  insurance,  (a)  Voluntary,  (b)   Compulsory? 

12.  Repeal  of  other  laws? 

13.  Constitutionality?5 

§  11.    Conclusions  of  the  Chicago  conference. — The 

conclusions  of  this  conference  were  drafted  into  a  law, 
the  fundamental  provisions  of  which  may  be  briefly 
stated  as  follows:  The  act  provides  a  compulsory  and 
exclusive  remedy,  with  a  waiting  period  of  two  weeks 
during  which  time  the  injured  workman  may  be  allowed 
compensation  by  way  of  medical  attendance  and  hospi- 
tal bills  and  funeral  expenses  not  to  exceed  $100.00;  it 
covers  all  hazardous  employments  and  the  compensation 
to  be  paid  to  injured  workers  or  dependents  is  based 
upon  50%  of  the  loss  of  wages  caused  by  the  injury 
without  regard  to  fault  or  negligence  excepting  malici- 
ous negligence,  payments  to  be  made  monthly  and  to 
continue  so  long  as  the  disability  lasts,  not  to  exceed 
three  hundred  weeks,  and  lump  sum  payments  to  be 
made  at  the  discretion  of  the  Board  of  Advisors;  the 
compensation  in  any  case  not  to  be  more  than  $10.00 
per  week  and  in  case  of  death  or  total  disability  not  less 
than  $5.00  per  week;  in  case  of  death  the  compensation 
to  dependents  shall  continue  not  longer  than  three  hun- 

5  See  page  29  of  Proceedings  of  Commissions  on  Compensation 
for  Industrial  Accidents,  Chicago,  Nov.  10,  12,  1910,  published  by 
Amos  T.  Saunders,  Secretary,  Clinton,  Massachusetts,  1910. 


§  12     WORKMEN'S  COMPENSATION  AND  INSURANCE.       22 

dred  weeks  and  in  case  of  total  disability  so  long  as  total 
disability  lasts  not  to  exceed  300  weeks.6 

§  12.  The  work  of  the  State  commissions. — Since 
the  Chicago  Conference  of  Commissions  and  during  the 
year  1911  and  the  first  six  months  of  1912  the  legisla- 
tures of  the  states  of  Ohio,  Washington  and  Massachu- 
setts have  enacted  Workmen's  Industrial  Insurance 
Laws  and  New  Hampshire,  New  Jersey,  Illinois,  Michi- 
gan, Wisconsin,  Kansas,  Nevada,  Rhode  Island  and 
California  have  enacted  Workmen's  Compensation  Acts. 
During  the  spring  of  1909  the  Montana  legislature  en- 
acted an  Insurance  Compensation  law  affecting  the  em- 
ployes of  mines  only.  Similar  commissions  are  now  at 
work  on  the  recommendation  of  compensation  acts  in 
other  states  and  are  required  to  report  to  their  re- 
spective legislatures. 

§  13.  Executive  recommendations. — Since  1908,  the 
subject  of  workmen's  compensation  has  received  fre- 
quent consideration  from  Congress  with  respect  to  the 
employes  of  employers  who  are  engaged  in  interstate 
commerce  and  in  the  government  service.  President 
Roosevelt  on  January  31,  1908,  sent  a  message  to  the 
Congress  in  which  he  advocated  the  passage  of  such  laws 
to  bring  relief  to  injured  workers  in  such  employments 
and  indicated  at  the  same  time  the  duty  of  the  legis- 
latures of  the  several  States  in  this  respect.  In  that 
message  the  President  said,  "I  also  very  urgently  advise 
that  a  comprehensive  act  be  passed  providing  for  com- 
pensation by  the  government  to  all  employes  injured  in 
the  government  service"  *  *  *  and  further,  "The  same 
broad  principle  which  should  apply  to  the  government 
should  ultimately  be  made  applicable  to  all  private  em- 
ployers. Where  the  nation  has  the  power  it  should  en- 
act the  laws  to  this  effect.  Where  the  States  alone  have 

6  See  Proceedings  Chicago  Conference  cited  above. 


23          DEVELOPMENT  IN  UNITED  STATES.        §  14 

the  power  they  should  enact  the  laws"7  *  *  *  Governor 
Hughes,  of  New  York  in  his  1909  annual  message  advo- 
cated the  enactment  of  like  legislation  for  the  protection 
of  injured  employes. 

§  14.  The  Federal  employers'  liability  and  work- 
men's compensation  commission.711 — This  Commission 
authorized  and  created  pursuant  to  a  joint  resolution8 
of  Congress,  conducted  extensive  investigations  during 
the  year  1910  and  1911  and  inquired  into  the  economic 
conditions  affecting  employes  of  railroads  engaged  in 
interstate  commerce  only.  The  commission  conducted 
hearings  in  Washington  and  Chicago  and  made  their  re- 
port to  Congress  in  December,  1911,  and  recommended 
a  workmen's  compensation  law  obligatory  and  exclusive 
in  nature  affecting  the  employes  of  railroads  engaged  in 
interstate  commerce  only.9 

7  The  Federal  Workmen's  Compensation  Act  affecting  employes 
of  the  Government  service,  was  passed  by  Congress  and  approved  by 
President  Roosevelt,  May  30th,  1908. 

7a  See  Chapter  XXII. 

8  Approved  June  25,  1910. 

9  See  message  of  the  President,  transmitting  the  report  of  the 
Employer's   Liability    and    Workmen's    Compensation    Commission, 
Senate  Document  No,  338,  62d  Congress,  2d  Session. 


CHAPTER  III. 

BRIEF  HISTORICAL  REVIEW  OF  THE  GERMAN  PLAN  OF 
INSURANCE  OF  WORKMEN  AGAINST  ACCIDENTS,  THE 
BRITISH  COMPENSATION  ACT,  AND  THE  OPERATION  OF 
THE  SYSTEMS  OF  EMPLOYERS'  LABILITY  IN  GREAT 
BRITAIN  AND  THE  UNITED  STATES, 

Sec.  Sec. 

15.  Chronological  development  of  18.  British  compensation  legisla- 
the  subject.  tion. 

16.  The    insurance    message    of  19.  Some  characteristics  of  Ger- 

Emperor  William  I.  man  insurance  legislation. 

17.  German  industrial  insurance 
acts. 

§  15.     Chronological  development  of  the  subject. — 

Frederick  the  Great  claimed  to  be  especially  the  king  of 
the  poor,  and  also  claimed  the  right  to  use  the  state  in 
any  way  he  saw  fit  for  their  protection  and  uplifting. 
The  Prussian  law  of  a  century  ago  acknowledged  the 
famous  right  to  work  and  to  a  living.  The  state,  in  its 
very  nature,  is  the  guardian  of  the  weaker  classes.  In 
the  common  law  of  that  time  it  is  stated: 

"It  is  the  duty  of  the  state  to  provide  sustenance  and 
support  of  those  of  its  citizens  who  cannot  provide  sus- 
tenance for  themselves.  Work  adapted  to  their  strength 
and  capacities  shall  be  supplied  to  those  who  lack  means 
and  opportunities  of  earning  a  livelihood  for  themselves 
and  those  dependent  upon  them. 

"Those  who  from  laziness,  love  of  idleness,  or  other 
irregular  proclivities,  do  not  choose  to  employ  the  means 
offered  them  of  earning  a  livelihood,  shall  be  kept  to  use- 
ful work  by  compulsion  and  punishment  under  proper 
control. 

"The  State  is  entitled  and  is  bound  to  take  such  mea- 
sures as  will  prevent  the  destitution  of  its  citizens  and 
check  excessive  extravagance. 

25 


I  15      WORKMEN'S  COMPENSATION  AND  INSURANCE.         26 

"The  police  authorities  of  every  place  must  provide 
for  all  poor  and  destitute  persons  whose  subsistence  can- 
not be  insured  in  any  other  way."1 

In  this  connection  it  is  to  be  noted  that  prior  to  1837 
the  principles  of  the  common  law  of  negligence  or  fault 
formed  the  only  basis  of  recovery  by  a  workman  from 
his  employer,  on  account  of  an  accident  to  him. 

In  that  year  Priestly  v.  Fowler,2  was  decided,  estab- 
lishing the  fellow  servant  rule,  which  relieves  the  master 
from  liability  for  an  injury  received  by  a  servant  in  the 
course  of  his  employment,  the  cause  of  which  was  due  to 
the  negligence  of  a  fellow  servant  engaged  in  the  same 
employment. 

Prussia,  on  November  3,  1838,  took  the  initial  step 
in  recognizing  the  new  principle  of  the  liability  of  em- 
ployers to  provide  compensation  for  industrial  accidents. 
It  was  applicable  to  railroads  only,  but  the  act  made  the 
companies  liable  for  accidents  to  passengers  as  well. 
The  companies  had  only  the  defenses  that  the  negligence 
of  the  person  injured  and  an  act  of  God  was  the  cause 
of  the  accident. 

Only  four  years  later  Judge  Shaw,  of  Massachusetts,3 
laid  down  the  doctrine  of  assumed  risks. 

In  1854  statutes  were  passed  in  Prussia  compelling 
certain  classes  of  employers  to  contribute  one-half  of  the 
subscriptions  to  the  fund  of  the  sick  associations  formed 
according  to  local  statutes. 

It  was  also  required  that  independent  mechanics  and 
manufacturers  advance  the  contributions  of  their 
journeymen  and  assistants,  with  the  proviso  of  charging 
it  to  the  next  payment  of  wages.  As  compensation  for 
their  share  in  the  payment,  the  employer  was  assured  a 

1  Fourth  Special  Report  of  the  Commission  of  Labor  of  the  United 
States,  1893,  page  26. 

2  3  M.  &  W.  1. 

SFarwell  v.  Boston,  etc.,  R.  Co.,  4  Met.  (Mass.)  49. 


27  REVIEW  OF  GERMAN  PLAN.  §  15 

corresponding  influence  over  the  administration  of  the 
fund. 

Several  German  States,  as  Brunswick,  Mecklenburg 
and  Saxony,  went  even  further  than  Prussia  in  demand- 
ing that  all  employers  should  belong  to  some  kind  of 
mutual  sick  association.4 

The  act  of  June  21,  1869,  for  the  North  German  Con- 
federacy had  the  effect  of  releasing  the  bond  of  com- 
pulsory contributions  to  the  sick  fund  by  employers  pro- 
vided by  the  act  of  1854. 

In  1876  there  were  in  all  Prussia  5,239  compulsory 
societies,  with  869,204  members.  In  1880  the  Prussian 
official  statistics  showed  839,602  members,  belong- 
ing to  registered  friendly  societies,  220,000  to  the  miners' 
societies,  and  200,000  to  non-registered  friendly  socie- 
ties, in  all,  1,259,602,  at  most  out  of  2,400,000  of  those 
employed  in  mines  and  all  industries  which  came  within 
the  law.  Though  there  was  still  everywhere  possibility 
of  local  compulsion,  the  act  of  1876  relating  to  friendly 
and  active  societies  had  made  it  so  little  effective  as  to 
leave  these  scant  results.  One-half  of  those  for  whom 
the  societies  (Sickness,  Relief  and  Burial)  were  meant 
were  still  uninsured.  "The  only  good  result  of  the  act 
of  1876  was  to  make  it  wholly  clear  to  all  who  cared  to 
know  the  facts,  that  the  most  dependent  class  could  only 
be  reached  by  the  strong  hand  of  the  state."5 

Two  years  before  the  passing  of  the  first  insurance 
law — that  of  sickness, — it  was  said  by  Bismarck,  in  ex- 
plaining the  first  draft  of  the  accident  bill,  "It  is  the  duty 
of  humanity  and  Christianity,  for  the  state  to  interest 
itself  to  a  great  degree  in  those  of  its  members  who  need 
help.  It  is  the  duty  of  the  state  to  cultivate  beneficent 
institutions;  this  will  be  no  novelty  but  a  further  solu- 

*  Fourth  Special  Report  of  the  Commission  of  Labor  of  United 
States,  1893,  p.  35. 

5  Fourth  Special  Report,  p.  36. 


§  1 6      WORKMEN'S  COMPENSATION  AND  INSURANCE.         28 

tion  of  the  modern  idea  of  the  state,  a  result  of  Christian 
morality;  in  accordance  with  such,  the  state  should  not 
merely  discharge  the  duties  of  self-defense,  but  those 
also  of  a  positive  character  in  promoting  the  welfare 
of  all  its  members,  and  especially  of  the  weak  and 
needy."6 

In  1871  Germany  enacted  the  famous  employers'  lia- 
bility act,  through  which  mine  owners  were  made  liable 
for  death  or  accident  that  could  be  proved  in  any  way, 
directly  or  indirectly,  the  fault  of  the  owner.  This  law 
excludes  the  two  defenses,  assumption  of  the  risk  and 
fellow  servant  rules.  Endless  bitterness  was  not  only 
caused  by  the  workings  of  this  law  but  extreme  delays 
occurred  in  the  settlement  of  cases,  and  the  dissatisfac- 
tion here  was  only  a  part  of  that  which  showed  itself 
throughout  most  of  Germany.7 

The  excuse  given  for  the  failure  of  the  voluntary 
insurance  act  of  1876  was  "Singly  we  are  too  weak  to 
carry  out  this  insurance.  It  costs  so  much  time  and 
money,  so  that  our  competitors  who  do  not  insure,  get 
an  instant  advantage  over  us  who  do  not  object  to  the 
extra  burden  if  all  of  our  rivals  are  compelled  to  bear  it 
also."8 

§  16.  The  insurance  message  of  Emperor  William 
I. — Emperor  William  I  came  to  Bismarck's  support  and 
gave  his  famous  message  on  November  17,  1881,  to  the 
Reichstag.  This  message  is  called  "The  monument  of 
the  New  Social  Era."  The  Emperor  said: 

"We  consider  it  our  Imperial  duty  to  impress  upon 
the  Reichstag  the  necessity  of  furthering  the  welfare 
of  the  working  people.  We  should  review  with  in- 

6  Die  Reden  von  Fuerst  Von  Bismarck  im  Preussischen  Landtage 
und  in  Deutschen  Reichstag  1881-1883  besorgt  Horst  Kohl,  Neunter 
Band  (1893),  Seite  9. 

7  Fourth  Special  Report,  p.  43. 

8  Fourth  Special  Report,  p.  46. 


29  REVIEW  OF  GERMAN  PLAN.  I/ 

creased  satisfaction  the  manifold  successes,  with  which 
the  Lord  has  blessed  our  Reign,  could  we  carry  with  us 
to  the  grave  the  consciousness  of  having  given  our 
country  an  additional  and  lasting  assurance  of  internal 
peace,  and  the  conviction  that  we  have  rendered  the 
needy  that  assistance  to  which  they  are  justly  entitled. 

"Our  efforts  in  this  direction  are  certain  of  the  ap- 
proval of  all  the  federated  governments,  and  we  confi- 
dently rely  on  the  support  of  the  Reichstag,  without 
distinction  of  parties.  In  order  to  realize  these  views 
a  bill  for  the  insurance  of  workmen  against  industrial 
accidents  will  first  of  all  be  laid  before  you,  after  which  a 
supplementary  measure  will  be  submitted  providing  for 
a  general  organization  of  industrial  sick  relief  insurance. 

"But  likewise  those  who  are  disabled  in  consequence 
of  old  age  and  invalidity  possess  a  well  founded  claim 
to  a  more  ample  relief  on  the  part  of  the  State  than 
they  have  hitherto  enjoyed.  To  devise  the  fittest  ways 
and  means  for  making  such  provisions,  however  diffi- 
cult, is  one  of  the  highest  obligations  of  every  com- 
munity based  on  the  moral  foundations  of  Christianity. 
A  more  intimate  connection  with  the  actual  capability 
of  the  people,  and  a  mode  of  turning  these  to  account, 
incorporated  societies,  under  the  patronage  and  with 
the  aid  of  the  State,  will,  we  trust,  develop  a  scheme  to 
solve  which  the  State  alone  would  be  unequal. "8a 

§  17.  German  Industrial  Insurance  Acts. — The  end 
sought  by  these  reformers  was  that  a  workingman,  un- 
fitted for  work  by  sickness,  accident,  invalidity  or  old 
age,  should  have  a  legal  right  to  due  and  just  provi- 
sion, in  order  not  to  be  compelled  to  rely  upon  public 
charity.  This  could  only  be  attained  by  a  system  of 
general  and  compulsory  insurance,  based  on  mutuality 

8a  Dr.  George  Zacher's  Guide  to  Workmen's  Insurance  of  the  Ger- 
man Empire,  pp.  1,  2. 


§  1 8      WORKMEN'S  COMPENSATION  AND  INSURANCE.         30 

and  self-administration.9  After  50  sittings  the  bill  for 
sick  insurance  passed  on  May  31,  1883,  with  a  majority 
of  117  votes.  It  did  not  include,  at  first,  employes  en- 
gaged in  agriculture  but  it  was  contemplated,  ultimately 
to  include  practically  all  employments. 

Afterwards  the  following  accident  insurance  laws 
were  passed: 

(1)  The  so-called  fundamental  law  of  July  6,  1884, 
for  Industry,  Transport  Trades,  Telegraph,  the  Army 
and  Navy. 

(2)  The  "Agricultural  Law"  of  May  5,  1886,  for 
Agriculture  and  Forestry. 

(3)  The  "Building  Law,"  July  11,  1887,  for  Build- 
ing Trades  so  far  not  insured. 

(4)  The  "Marine  Law,"  July  13,  1887,  for  Naviga- 
tion. 

§  18.  British  compensation  legislation. — In  Eng- 
land the  first  employers'  liability  act  was  passed  in  1880. 
The  most  important  provision  of  this  law  was  the  ex- 
tension of  the  principle  of  the  vice  principal,  but  the  re- 
lief appears  to  have  been  slight  and  unsatisfactory.  The 
unimpaired  rigor  of  the  rule  as  to  the  assumption  of 
risk  became  more  in  evidence  as  the  use  of  safety  ap- 
pliances became  more  general  and  the  number  of  acci- 
dents traceable  to  the  employers'  negligence  fewer;  so 
that  after  an  unsuccessful  attempt  by  Mr.  Asquith,  in 
1893,  to  do  away  with  the  "Common  Employment"  rule 
and  the  implied  contract  of  assumption  of  the  risk,  the 
time  became  ripe  for  the  introduction  of  Mr.  Chamber- 
lain's Workmen's  Compensation  act,  the  gist  of  which 
is  to  provide  unfailing  and  universal  compensation  for 
workingmen's  injuries,  without  regard  to  negligence, 
which  passed  in  1897. 

9  Dr.  George  Zacher,  Guide  to  the  Workmen's  Insurance  of  the 
German  Empire,  p.  3. 


3 1  REVIEW  OF  GERMAN   PLAN.  §  IQ 

The  efficiency  of  the  British  compensation  act  as 
compared  with  the  employers'  liability  act  is  shown  by 
the  figures  in  1904  which  disclose  that  there  were  3,065 
deaths  of  employes  in  industrial  accidents  covered  by 
the  compensation  act  and  of  these  524  came  before  the 
county  courts  and  but  112  were  brought  under  the  em- 
ployers' liability  act. 

§  19.  Some  characteristics  of  German  insurance 
legislation. — In  Germany  the  compensation  is  fixed 
officially,  after  an  investigation  by  the  police  and  by  the 
organs  of  the  trade  associations  without  delay.  Against 
the  decisions  of  the  trade  association  the  entitled  person 
may  appeal  within  a  month  for  an  arbitration  court  of 
two  representatives  chosen  by  the  employer  and  two 
by  the  employes,  with  a  state  official  as  chairman.  The 
arbitration  courts  have  been  established  and  working 
since  1901,  for  both  accident  and  invalidity  insurance.10 

As  it  is  evident  that  both  the  trade  associations  and 
their  individual  members  have  a  strong  interest  in  di- 
minishing the  chances  of  accidents,  the  law  confers  on 
the  trade  associations,  the  important  privilege  of  recom- 
mending regulations  for  the  prevention  of  accidents.  By 
such  regulations  not  only  the  employers  can  be  com- 
pelled, under  penalty  of  higher  assessments,  to  adopt 
the  necessary  measures  for  safety  but  also  the  workmen 
may  be  forced  by  fines  to  follow  these  rules. 

"As  regards  the  participation  of  the  insured  work- 
men in  the  organization  of  the  Trade  Associations,  they 
are  neither  members  of  the  Associations  nor  have  they 
to  bear  any  of  the  corporate  burdens.  They  have,  how- 
ever, to  take  on  themselves  a  portion  of  the  aggregate 
liabilities  caused  by  accidents,  in  so  far  as,  together  with 

10  Dr.  George  Zacher's  Guide  to  Workmen's   Insurance  of  the 
German  Empire,  p.  13. 


§  19       WORKMEN'S  COMPENSATION  AND  INSURANCE.        32 

the  employers  they  contribute  to  the  sick  relief  club,  to 
which,  for  practical  reasons,  the  care  of  patients  is  left 
during  the  first  thirteen  weeks  of  illness  ("waiting 
time":  about  six  and  two-thirds  percent  of  the  whole 
burdens  of  Sick  Insurance,  i.  e.  four  and  one-half  per- 
cent to  the  charge  of  the  workmen).  But  the  statistical 
calculations  made  show  that  the  contributions  of  the 
workmen  to  the  Accident  Insurance  stay  in  an  inverse 
ratio  to  the  contributions  of  the  employers  to  the  Sick- 
ness Insurance,  for  while  the  workmen,  on  their  part, 
bear  only  eight  percent  of  the  entire  burden  for  the  acci- 
dents, the  employers  have  to  contribute  four  times  as 
much  (thirty-three  and  one-third  percent)  to  the  Sick- 
ness Insurance.  From  these  reciprocal  relations  it  fol- 
lows as  a  necessity,  that  the  employers  should  partici- 
pate in  the  management  of  the  Sick  Associations,  and 
that  to  the  employes  in  their  turn,  must  be  conceded  a 
share  in  the  administration  of  the  accident  insurance. 
Accordingly  the  law  permits  representatives  of  the 
workmen,  elected  by  them,  to  take  part  in  the  discus- 
sion of  preventive  regulations,  and  in  the  police  investi- 
gations of  accident  cases,  as  well  as  in  the  proceedings 
of  the  Arbitration  Courts  and  of  the  Imperial  Insurance 
Office;  on  all  these  occasions  the  workmen  enjoy  the 
same  rights  as  the  representatives  of  the  employers,  and 
the  law  guarantees  them  the  free  exercise  of  this  honor- 
ary co-operation." 


CHAPTER  IV. 

THE  ORIGIN  AND  DEVELOPMENT  OF  COMPULSORY  INDUS- 
TRIAL INSURANCE  FOR  WORKMEN  IN  THE  GERMAN 
STATES-SICK  INSURANCE,  ACCIDENT  INSURANCE,  AND 
INVALIDITY  AND  OLD-AGE  PENSIONS. 

Sec.  Sec. 

2C.  Conditions  in  Germany  which  27.  Basis   of   compulsory    insur- 

induced  consideration  of  the  ance. 

subject.  28.  German  system  discribed. 

21.  Influence      of     Fichte      and  29.  The  relation  of  the  German 
Hegel.  industrial   insurance  law   to 

22.  Views  of  Sismondi.  Socialism. 

23.  Views  of  Winkelblech.  30.  Development  of  the  insurance 

24.  Views  of  Schaeffle,  father  of  idea   from  the  early   guilds, 
compulsory  state  insurance.  31.  Miners'      societies      (Knapp- 

25.  Views  of  Wagner.  schaftskassen) . 

26.  State  insurance  a  matter  of  32.  Ethical  basis  of  system. 
German  origin. 

§  20.  Conditions  in  Germany  which  induced  con- 
sideration of  the  subject. — Germany  was  the  pioneer  of 
Workmen's  Insurance  against  the  economic  insecurity 
arising  out  of  the  modern  wage  system.  This  was 
brought  about  by  the  peculiar  condition  which  sur- 
rounded the  German  workmen  and  the  peasant  classes. 
The  governments  of  the  several  German  states,  which 
ultimately  were  to  constitute  the  German  Empire,  were 
monarchial  in  form.  Their  absolutism  remained  sub- 
stantially intact  until  the  creation  of  the  constitutional 
government  which  brought  into  existence  the  German 
Empire.  For  this  reason  individualism  had  little  oppor- 
tunity to  develop  in  Germany  and  industrial  freedom 
among  the  working  classes  had  been  strangled.  Indi- 
vidualism and  industrial  freedom  developed  in  the  latter 
part  of  the  eighteenth  century  and  the  first  half  of  the 
nineteenth  century  and  was  brought  about  and  advanced 
by  the  discussion  of  German  philosophers,  as  to  what 

33 

3— BOYD  W  C 


§  2i      WORKMEN'S  COMPENSATION  AND  INSURANCE.         34 

should  be  the  duties  of  the  state  to  its  citizens.  This 
doctrine  attained  an  advanced  state  of  development  with 
the  enactment  of  insurance  against  sickness,  accidents 
and  old  age  during  the  period  1883-1889. 

§  21.  Influence  of  Fichte  and  Hegel. — The  philoso- 
phers Fichte  and  Hegel  planted  the  germ  of  socialistic 
doctrine  which  took  root  during  that  period  and  which 
has  since  been  developed  by  the  German  socialists  to  so 
high  a  degree.  Concerning  the  influence  of  these  writ- 
ers it  is  said  by  John  Graham  Brooks :  "The  three  laws 
of  insurance  against  sickness,  accident,  and  old  age  and 
invalidity  confessedly  rest  upon  a  conception  of  society 
which  is  sharply  opposed  to  what  is  loosely  called  in- 
dividualism, or  laissez  faire.  In  the  portentous  mass  of 
this  insurance  literature  the  thought  is  constantly  ex- 
pressed that  the  weaker  members  of  society  will  be  ex- 
cluded from  all  that  accords  with  our  usual  sense  of 
justice  and  fair  dealing  until  the  centers  of  social  in- 
fluence, of  which  the  first  and  most  powerful  is  the 
state,  become  imbued  with  the  idea  that  a  large  propor- 
tion of  the  misfortunes,  sickness,  accident,  and  prema- 
ture age  are  social  in  origin  rather  than  individual ;  that 
a  vast  part  of  these  evils  spring,  not  from  the  fault  of 
the  individual,  but  from  sources  over  which  the  individ- 
ual has  little  or  no  control.  The  philosopher  Fichte  ap- 
plies this  thought  with  such  eloquent  power  to  the  duty 
of  the  state  as  to  result  in  a  distinct  practical  change  of 
the  state's  attitude."1 

The  social  philosopher  Lassalle  shaped  much  social 
legislation  in  Germany.  He  was  greatly  influenced  by 
two  books  written  by  Fichte,  one  in  1796,  the  other,  Der 
geschlossene  Handelsstaat,  1800.  Lassalle  quotes  many 
sentences  from  this  latter  work  about  the  duties  of  the 
State  which  in  all  essentials  are  the  same  as  the  innum- 

1  Fourth  Special  Report  of  Commissioner  of  Labor,  1893,  p.  19. 


35  GERMAN  COMPULSORY  INSURANCE.  §  22 

erable  utterances  that  filled  the  discussion  upon  state 
insurance  during  the  years  which  immediately  preceded 
the  enactment  of  these  laws. 

The  State,  according  to  Fichte's  conception,  "is  not 
to  be  negative  nor  to  have  mere  police  function,  but  to 
be  filled  with  Christian  concern,  especially  for  the  weaker 
members.  The  conceptions  of  property  and  contract 
are  such  as  compel  such  intervention  on  the  part  of  the 
superior  authority  in  order  to  realize  the  ends  of  justice 
and  equality  among  men."  It  is  necessary  to  deal  with 
these  things  in  order  to  understand  the  theory  of  the 
State's  duty  to  which  Bismarck  and  the  economists  con- 
stantly made  their  appeals  during  the  period  of  agitation 
which  preceded  this  legislation. 

§  22.  Views  of  Sismondi. — Sismondi,  another  of  the 
powerful  writers  on  this  subject,  said  in  1819:  "We  re- 
gard the  government  as  having  the  duty  of  protecting 
the  weak  against  the  strong."  He  contrasts  sharply  the 
permanent  interests  of  society  as  a  whole  with  fluctuat- 
ing personal  and  private  interests  amidst  which  the  weak 
and  ignorant  may  go  to  the  wall.  Precisely  as  in  the 
case  of  Professor  Winkelblech  he  seems  to  have  been 
converted  to  this  view  by  a  journey  through  certain  in- 
dustrial centers  of  Europe.  He  describes  the  unhappy 
condition  of  the  laborers  in  the  manufacturing  centers, 
adding  at  the  close:  "I  became  persuaded  that  govern- 
ments were  upon  the  wrong  road."  "A  state  may  be 
very  miserable  indeed  even  though  a  few  individuals 
gather  colossal  fortunes." 

§  23.  Views  of  Winkelblech. — Professor  Winkel- 
blech, prior  to  1850,2  in  criticising  the  liberal  school, 
maintained  "the  necessity  of  a  general  obligatory  insur- 
ance as  alone  adequate  to  protect  laborers  in  their  strug- 
gle with  the  conditions  of  the  great  industries."  He 

2  Organization  of  Labor,  Vol.  II,  p.  328. 


§  24      WORKMEN'S  COMPENSATION  AND  INSURANCE.         36 

saw  in  this  a  sure  way  of  helping  on  toward  a  greater 
equality  of  conditions,  and  above  all,  that  such  insur- 
ance would  free  labor  from  the  haunting  sense  of  inse- 
curity, which  was  one  of  the  chief  evils  to  be  remedied. 

§  24.  Views  of  Schaeffle,  father  of  compulsory  state 
insurance. — Dr.  Schaeffle  is  called  the  father  of  compul- 
sory state  insurance.  He  conceived  the  plan  in  the  year 
1867  or  prior  thereto.  He  advanced  the  idea  of  such 
insurance  in  his  work  on  Kapitalismus  und  Socialismus.3 
As  Joseph  Chamberlain  has  since  done  in  England,  he 
maintained  that  the  existing  charity  administration 
was  not  only  a  vicious  sort  of  communism  at  its  worst, 
but  did  not  even  begin  to  reach  its  end.  Even  if  state 
insurance  was  socialistic,  it  was  less  harmfully  so,  in 
Schaeffle's  opinion,  than  the  existing  forms  of  charity. 
In  place  of  the  old  charity  he  demanded  a  "nationalized 
general  self-provision  for  the  whole  life"  (planmassige 
Selbstfiirsorge  fur  das  ganze  Leben).  The  expense  must 
be  paid  by  the  employer,  but  would  in  his  opinion  be- 
come a  part  of  the  cost  of  production.  Though  the  la- 
borers pay  the  contributions,  their  minimum  wage  would 
rise  by  that  amount.  He  found  in  this  compulsory  in- 
surance a  close  analogy  to  compulsory  education,  an 
argument  also  used  by  those  who  have  pleaded  in  Eng- 
land for  old  age  pensions. 

§  25.  Views  of  Wagner. — The  same  arguments  were 
made  against  this  interference  by  the  State  for  the  pro- 
tection of  the  weak  that  are  made  today  against  the 
compulsory  workmen's  compensation  acts  that  are  being 
adopted.  These  laws  were  opposed  because  they  were 
socialistic  and  paternalistic.  The  second,  strongest  op- 
position was  that  of  private  insurance  companies  of 
whom  Professor  Wagner  said  "Your  own  selfish  in- 
terests blind  you  to  the  merits  of  a  question  whose  only 

3  pp.  700-702,  731. 


37  GERMAN  COMPULSORY  INSURANCE.  §  26 

decision  can  come  from  the  higher  ground  of  general 
social  welfare." 

The  most  forceful  leader  of  the  social  political  econo- 
mists, whose  agitation  covered  a  period  of  sixteen  years 
prior  to  the  passage  of  the  insurance  laws,  was  Professor 
Wagner.  His  point  of  view  is  concisely  stated  in  the 
following  quotation:4 

"Perhaps  the  most  prominent  thought  in  this  rela- 
tion is  Wagner's  assertion  that  the  great  mass  of  weaker 
laborers  will  not  be  helped  out  of  their  condition  by  the 
free  struggle  of  private  business  interests.  He  holds 
that  these  masses  are  unable  to  cope  with  the  conditions 
which  capitalistic  production  imposes  upon  them.  His 
reaction  against  the  current  economic  individualism  is 
sharp  and  direct.  The  State  has  here  not  merely  an 
exceptional  task  to  perform,  but  the  permanent  duty  of 
strengthening  the  laborer  in  his  struggle.  Not  only 
should  co-operative  groups  in  every  form  be  favored, 
but  trade  organizations  as  well.  There  is  no  limit,  ex- 
cept the  purely  practical  one,  to  the  State's  duty  of  in- 
terference. The  very  meaning  of  the  'social  question' 
to  Wagner  is  this  putting  of  the  laborer  into  a  position 
where  the  struggle  for  existence  can  be  made  as  fair  as 
the  nature  of  the  problem  admits.  That  the  odds  are 
now  greatly  against  the  weaker  workers  is  not  only  ad- 
mitted, but  vigorously  maintained.  Neither  private  in- 
terest, nor  charity,  nor  self-help  is  adequate  to  do  this 
work  of  evening  up  conditions.  The  State,  inspired  by 
strong  moral  purpose,  must  act  a  bold  and  positive  part 
in  this  programme." 

§  26.     State  insurance  a  matter  of  German  origin. — 

State  insurance  was  long  an  economic  and  social  theory 
before  it  became  a  fact,  and  the  general  principles  to 
which  the  theory  appealed  for  its  sanction  were  used  in 

*  Fourth  Special  Report,  p.  23. 


§  2£      WORKMEN'S  COMPENSATION  AND  INSURANCE.         38 

Austria,  France  and  England  with  frank  acknowledg- 
ment that  Germany  had  originated  the  idea  out  of  which 
it  all  grew.5  *  *  * 

§  27.  Basis  of  compulsory  insurance. — These  ideas, 
respecting  the  duty  of  the  State  to  the  weaker  members 
of  society,  point  to  the  same  conclusion  as  are  deduced 
by  Chief  Justice  Waite  in  Munn  v.  Illinois,  94  U.  S.  113, 
in  which  he  announced  the  conditions  under  which  a 
public  interest  arose  in  the  property  of  a  person  or  cor- 
poration owing  to  the  manner  in  which  the  property 
was  used  and  consequently  when  and  to  what  extent  the 
State  through  the  exercise  of  its  police  powers  had  a 
right  to  exercise  its  taxing  power  to  take  private  prop- 
erty and  to  interfere  with  private  contracts  for  the  pro- 
tection of  the  health,  safety  and  general  welfare  of  the 
public.  To  a  greater  extent  can  this  be  done  by  the 
government  of  the  Dominion  of  Canada,  under  the  Brit- 
ish North  America  Act,  Section  92,  paragraph  13. 

The  views  of  Wagner  in  this  report  are  set  forth  in 
the  following  paragraphs  :6 

"Public  revenue  to  be  so  raised  as  to  allow  of  the 
'communistic'  character  of  public  bodies,  above  de- 
scribed, being  developed  wherever  decided  objections, 
consequent  upon  the  peculiar  circumstances  of  the  case, 
do  not  exist.  This  'communistic'  character  to  be 
strengthened  in  favor  of  the  poorer  and  socially  weaker 
classes,  with  whom  the  economic  and  social  struggle  for 
existence  and  for  social  advancement  is  severest,  by 
means  of  a  system  of  administrative  measures  calculated 
especially  to  benefit  them,  yet  the  cost  of  which  shall  be 
defrayed  by  the  general  revenue  and  taxes;  but  this 
'communistic'  character  of  State  activity  to  be  weaker 
where  the  interests  of  the  well-to-do  and  richer  classes 

5  Fourth  Special  Report,  p.  24. 
«  Fourth  Special  Report,  p.  25. 


39  GERMAN  COMPULSORY  INSURANCE.  §  2/ 

of  society  come  especially  or  exclusively  into  question. 
Here  expenditures  should  be  rather  covered  by  a  just 
system  of  taxes — including  taxes  based  on  the  principle 
of  taxation  according  to  benefit — than  by  the  use  of  the 
general  revenue.  This  implies  the  regulation  of  the 
post,  telegraph,  and  railway  tariffs,  judicial  charges, 
school  fees,  etc. 

Taxation  to  be  so  adjusted  that,  besides  fulfilling  its 
primary  function,  that  of  providing  the  revenue  needed 
to  cover  public  requirements,  it  may,  as  well  as  possible, 
fulfill  a  not  less  important  indirect  purpose,  which  is 
twofold:  (1)  Regulative  interference  with  the  distribu- 
tion of  the  income  and  wealth  of  private  persons,  so  far 
as  that  distribution  is  the  product  of  free  economic  in- 
tercourse, as  by  the  medium  of  prices,  wages,  interest, 
and  rent,  with  a  view  to  counteracting  the  harshness, 
injustice  and  excessive  privileges  caused  by  the  distri- 
bution obtaining  in  this  intercourse;  (2)  and  at  the  same 
time  regulative  interference,  supported  necessarily  by 
further  administrative  measures,  and  eventually  by  com- 
pulsion (as  in  the  domain  of  industrial  insurance)  in 
private  consumption.  This  latter  can  be  done  by  mak- 
ing the  lower  classes  provide — by  means  of  direct  and 
indirect  taxes,  especially  indirect  (excise),  which  in 
this  connection  are  often  very  suitable — the  revenue 
necessary  for  administrative  purposes  calculated  to  ben- 
efit them,  this  being  affected  by  diverting  income  which 
they  may  be  applying  to  improper,  perhaps  injurious,  or 
at  the  least,  less  necessary  and  wholesome  purposes 
(e.  g.,  drink)  to  purposes  more  beneficial  to  society,  the 
class,  or  the  individual." 

Not  only  is  every  principle  upon  which  such  a  step 
as  compulsory  industrial  insurance  could  be  based  stated 
in  the  foregoing  quotation  but  it  stands  in  direct  and 
unbroken  line  with  the  economic  traditions  of  the  Prus- 
sian monarchy. 


§  28      WORKMEN'S  COMPENSATION  AND  INSURANCE.         40 

It  is  to  be  further  noted  in  commenting  upon  the 
quotation  given  above  from  Wagner,  that  his  plan  of 
governmental  regulation  affecting  both  the  rich  and 
the  poor,  provided  for  the  taxing  of  both  the  rich  and 
the  poor  in  an  equitable  manner  so  as  to  correct  the  evils 
to  which  each  class  is  inclined. 

For  example,  under  item  (1),  his  plan  of  taxation 
which  provided  for  the  taxation  of  "income  and  wealth" 
his  theory  was  that  "so  far  as  income  resulted  from 
economic  intercourse,  taxes  should  be  levied  with  a  view 
to  counteracting  the  harshness,  injustice  and  excessive 
privileges  caused  by  the  distribution  obtaining  in  this 
intercourse." 

But  note  also  in  like  manner  under  item  (2)  of  his; 
plan  of  taxation  that  he  would  tax  the  poor  by  indirect 
taxation  in  such  a  manner  as  would  correct  their  im- 
provident tendencies,  characteristic  of  them,  and  he  in- 
cludes compulsory  industrial  insurance  among  his  regu- 
lative plans  of  interference. 

The  great  significance  of  these  theories  of  Wagner 
is  the  following:  The  Industrial  Insurance  which  has- 
been  developed  in  Germany  along  the  above  lines  is 
based  upon  the  theory  not  that  the  employer  is  to  make 
a  contribution  to  the  employe  but  that  the  funds  neces- 
sary to  be  raised  to  carry  out  the  German  plan  of  in- 
dustrial insurance  shall  be  raised  so  that  both  the  em- 
ployer class  and  employe  class  shall  contribute  to  the 
funds  to  the  extent  that  each  class  is  presumed  to  be 
equitably  benefited  in  the  establishment  of  a  new  econo- 
mic return. 

§  28.  German  system  described. — Professor  Charles 
R.  Henderson7  describes  the  German  system  as  follows : 
"It  is  sometimes  asserted  that  the  German  system  of 
workingmen's  insurance  is  nothing  better  than  a  dis- 

7  Industrial  Insurance  in  the  United  States,  2nd  ed.,  p.  7. 


41  GERMAN  COMPULSORY  INSURANCE.  §  28 

guised  form  of  poor  relief,  a  kind  of  gift  from  above  paid 
by  the  government  at  the  expense  of  taxpayers  to  pre- 
vent rebellion  of  the  'lower  classes.'  The  classic  mes- 
sage of  the  emperor8  gives  a  more  just  interpretation  of 
the  purpose  of  the  'social  policy'  of  the  nation.  The  de- 
mand is  made  on  the  basis  of  the  duty  to  the  people  and 
the  common  welfare,  because  health,  security  and  free- 
dom from  dependence  are  not  a  mere  class  interest  but 
belong  of  right  to  all.  Those  who  risk  the  greatest  dan- 
ger to  life  and  limb  should  not  be  left  to  carry  the  entire 
cost  of  that  hazard. 

Insurance  is  not  poor  relief  but  common  justice,  a 
method  of  fairly  distributing  the  extraordinary  costs  of 
civilization.  Since  such  insurance  never  has  been  made 
general  and  never  can  be  made  general  by  any  voluntary 
scheme,  the  government,  the  agent  of  the  common  in- 
telligence, conscience  and  will,  intervenes  far  enough  to 
enforce  obligation,  to  regulate  the  method  and  to  insure 
the  rights  of  all  concerned.  Thus  in  the  United  States 
the  government,  under  the  right  of  eminent  domain, 
takes  landed  property  for  a  consideration  and  gives  it 
to  railroads  for  right  of  way  or  as  subsidy;  and  in  turn 
prescribes  the  terms  on  which  a  railway  corporation  can 
enjoy  these  special  privileges.  Thus  also  the  federal 
government  grants  privileges  to  certain  banks  and  con- 
trols the  method  of  their  administration.  In  Germany 
the  government  seeks  in  its  insurance  laws  to  encourage 
and  stimulate  the  interest  of  both  the  employers  and 
employes  in  the  system.  The  entire  system  is  based  on 
the  principles  of  mutual  benefit,  self-government  and 
local  initiative.  Both  employers  and  employes  have  a 
right  to  participate  in  the  administration  and  judicial 
application  of  the  law,  as  both  share  equitably  in  the 
cost.  It  is  not  state  insurance,  but  insurance  on  the 

8  Ante,  §  16. 


§  28      WORKMEN'S  COMPENSATION  AND  INSURANCE.         42 

basis  of  mutuality  and  self-government,  under  the  regu- 
lation of  law.  It  is  precisely  in  this  administration  that 
the  working-men  feel  themselves  to  be  free  agents  and 
intelligent  participants  in  the  affairs  of  their  country. 
There  is  no  taint  of  charity  from  first  to  last;  each  man 
pays  his  share  of  the  cost,  has  a  voice  in  the  control  and 
can  set  up  a  legal  claim  when  he  needs  his  benefits.  All 
this  removes  the  insurance  system  by  the  diameter  of 
the  moral  world  from  poor  relief  and  private  charity. 

The  German  system  does  not  make  other  forms  of 
protection  superfluous,  since  it  simply  provides  for  the 
necessities  of  existence;  it  does  not  remove  the  motive 
for  forming  trade  unions  and  fraternal  societies,  nor  for 
investing  in  extra  insurance  in  life  insurance  companies, 
nor  for  savings.  All  these  organizations  of  thrift  flour- 
ish in  Germany."  And  again  he  says  :9 

"It  is  sometimes  asserted — in  advance  of  proof — that 
accident,  sickness,  and  old  age  insurance  is  a  burden 
upon  the  capital,  industry,  and  commerce  of  a  nation.  As 
Germany  is  the  country  which  annually  does  more  than 
other  nations  in  this  direction  it  seems  not  unfair  to  men- 
tion the  fact  that  the  years  of  trial  of  her  system  of  in- 
surance have  been  precisely  the  years  in  which  that 
nation  has  forged  to  the  front  rank  in  the  world  of  manu- 
factures and  commerce.  The  nation  has  grown  rich  and 
the  workingmen  have  improved  their  condition  so  that 
they  are  not  anxious  to  emigrate  as  formerly.  On  all 
these  points  we  have  several  recent  publications  which 
reveal  the  situation  with  a  wealth  of  statistical  evi- 
dence." 

In  another  authoritative  work10  occurs  the  following 
comment  on  this  scheme  of  industrial  insurance: 

"It  may  be  briefly  described  as  follows :    In  carrying 

9  Henderson  Industrial  Insurance,  p.  6. 

10  Frankel  &  Dawson  on  Workmen's  Insurance  in  Europe,  p.  9. 
(Prepared  under  Russell  Sage  Foundation.) 


43  GERMAN  COMPULSORY  INSURANCE.  §  28 

on  any  given  industry  for  the  benefit  of  those  who  will 
enjoy  the  products  or  the  services  supplied  thereby, 
there  will  be,  on  the  whole,  taking  into  account  all  the 
various  establishments  engaged  in  those  industries,  a 
more  or  less  stable  aggregate  amount  of  loss  and  dam- 
age occasioned  by  industrial  accidents.  While  each  par- 
ticular accident,  considered  by  itself,  might  appear  to 
have  been  preventable  if  an  extraordinary  degree  of 
caution  had  been  exercised,  it  will  also  appear,  when  the 
losses  are  spread  over  the  entire  industry,  and  especially 
when  the  experience  of  many  years  is  combined,  that 
there  is  a  more  or  less  steady  ratio  between  the  financial 
loss  and  the  financial  value  of  the  entire  product,  indi- 
cating that  accidents  are  governed  by  laws  of  probabil- 
ity and  are  to  a  certain  degree  inevitable. 

In  other  words,  this  loss  or  damage,  as  much  as  loss 
or  damage  by  destruction  of  material,  by  wear  and  tear 
of  machinery,  etc.,  is  a  part  of  the  cost  of  the  commodity 
in  the  production  of  which  the  workingman  was  em- 
ployed at  the  time  the  accident  took  place. 

It  follows  that  the  workingman,  or  his  family  in  the 
event  of  his  death,  should  be  compensated  in  a  reason- 
able amount  for  the  consequences  of  an  industrial  acci- 
dent; not  in  order  that  some  one  shall  be  mulcted,  on 
the  ground  that  he  was  at  fault,  but  in  order  that  this 
portion  of  the  cost  of  the  product  or  services  shall  not  be 
transferred  from  the  employer  and  the  ultimate  con- 
sumer to  the  workingman  and  his  family,  crushing  them 
in  many  cases,  and  eventually  shifting  the  burden  to  the 
community  in  the  most  undesirable  form  of  charity." 
Further  along11  the  authors  say: 

"As  stated  above,  the  new  statutes  provide  for  in- 
demnification of  workingmen  for  the  consequences  of 
industrial  accidents  on  the  principle  that  their  cost 

11  Henderson  Industrial  Insurance,  p.  18. 


§  29      WORKMEN'S  COMPENSATION  AND  INSURANCE.         44 

should  fall  upon  the  employer,  not  as  a  punishment,  nor 
because  he  was  negligent,  but  merely  to  throw  the  bur- 
den ultimately  on  those  who  enjoy  the  product." 

§  29.  The  relation  of  the  German  Industrial  Insur- 
ance Law  to  Socialism. — The  Prussian  government 
prior  to  the  war  of  1870-71  entertained  no  anxiety  about 
socialism.  It  had  cause  for  anxiety,  however,  when  the 
socialist  vote  increased  from  350,000  in  1874  to  about 
500,000  in  1877.12 

Lassalle's  type  of  practical  socialism  (productive  co- 
operation of  associations)  from  the  time  of  the  Socialis- 
tic congress  of  1875  gave  way  more  and  more  to  the 
Marx  type  which  attacked  the  then  existing  industrial 
order  with  its  wage  system,  private  rent  and  interest. 
They  ceased  to  talk  about  the  co-operative  association 
of  Lassalle's  type.  Following  the  two  attempts  on  the 
life  of  the  German  Emperor  in  1878,  Bicmarck  had  dras- 
tic laws  passed  prohibiting  meetings,  suppressing  clubs 
and  publications  active  in  the  propagation  of  the  Marx 
doctrines.  The  quotation  below  not  only  shows  what 
the  Marx  doctrine  was  but  what  the  government  was 
striking  at. 

"The  endeavors  of  social  democracy  are  aimed  at 
the  practical  realization  of  the  radical  theories  of  mod- 
ern socialism  and  communism.  According  to  these 
theories  the  present  system  of  production  is  uneconomi- 
cal, and  must  be  rejected  as  an  unjust  exploitation  of 
labor  by  capital.  Labor  is  to  be  emancipated  from  capi- 
tal; private  capital  is  to  be  converted  into  collective 
capital;  individual  production,  regulated  by  competition, 
is  to  be  converted  into  systematic  co-operative  produc- 
tion ;  and  the  individual  is  to  be  absorbed  in  society.  The 
social  democratic  movement  differs  greatly  from  all 
humanitarian  movements  in  that  it  proceeds  form  the 

12  Fourth  Special  Report,  p.  27. 


45  GERMAN  COMPULSORY  INSURANCE.  §  2Q 

assumption  that  the  amelioration  of  the  condition  of  the 
working  classes  is  impossible  on  the  basis  of  the  present 
social  system,  and  can  only  be  attained  by  the  social 
revolution  spoken  of.  This  social  revolution  is  to  be 
effected  by  the  co-operation  of  the  working  classes  of  all 
states  with  the  simultaneous  subversion  of  the  existing 
constitutions.  The  movement  has  especially  taken  this 
revolutionary  and  international  character  since  the  foun- 
dation of  the  International  Workingmen's  association  in 
London  in  September,  1864.  *  *  *  It  is,  in  fact,  a 
question  of  breaking  away  from  the  legal  development 
of  civilized  states  and  of  the  complete  subversion  of  the 
prevailing  system  of  property.  The  organization  of  the 
proletariat,  the  destruction  of  the  existing  order  of  state 
and  society,  and  the  establishment  of  the  socialistic  com- 
munity and  the  socialistic  state  by  the  organized  prole- 
tariat—these are  the  avowed  aims  of  social  democracy. 
The  well  organized  socialistic  agitation,  carried  on 
by  speech  and  writings  with  passionate  energy,  is  in 
accord  with  these  ends.  This  agitation  seeks  to  dis- 
seminate amongst  the  poor  and  less  educated  classes  of 
the  population  discontent  with  their  lot  as  well  as  the 
conviction  that  under  the  present  regime  their  condition 
is  hopeless,  and  to  excite  them  as  the  "disinherited"  to 
envy  and  hatred  of  the  upper  classes.  The  moral  and 
religious  convictions  which  hold  society  together  are 
shattered;  reverence  and  piety  are  ridiculed;  the  legal 
notions  of  the  masses  are  confused;  and  respect  for  the 
law  is  destroyed.  The  most  odious  attacks  and  abuse 
which  are  leveled  at  the  German  empire  and  its  con- 
stitutions— at  royalty  and  the  army,  whose  glorious  his- 
tory is  slandered — give  the  socialist  agitation  in  this 
country  a  specifically  anti-national  stamp;  for  it 
estranges  the  minds  of  the  people  from  native  customs 
and  from  the  fatherland.  The  representations  which  are 
given,  both  by  spoken  and  written  word,  of  former  revo- 


§  2Q       WORKMEN'S  COMPENSATION  AND  INSURANCE.        46 

lutionary  events  and  the  glorification  of  well  known 
leaders  of  revolution,  as  well  as  the  acts  of  the  Paris 
commune,  are  calculated  to  excite  revolutionary  desires 
and  passions  and  to  dispose  the  masses  to  acts  of  vio- 
lence. The  law  of  self-preservation,  therefore,  compels 
the  state  and  society  to  oppose  the  social  democratic 
movement  with  decision;  and  above  all,  the  state  is 
bound  to  protect  the  legal  system  which  is  threatened 
by  social  democracy,  and  to  put  restraints  upon  socialis- 
tic agitation.  True  thought  can  not  be  repressed  by 
external  compulsion;  the  movements  of  minds  can  only 
be  overcome  in  intellectual  combat.  Still,  when  such 
movements  take  wrong  ways  and  threaten  to  become 
destructive,  the  means  for  their  extension  can  and  should 
be  taken  away  by  legal  means. 

The  socialistic  agitation,  as  carried  on  for  years,  is  a 
continued  appeal  to  violence  and  to  the  passions  of  the 
masses  with  a  view  to  the  subversion  of  state  and  social 
order.  The  state  can  check  such  an  enterprise  as  this 
by  depriving  social  democracy  of  its  most  important 
means  of  agitation  and  by  destroying  its  organization; 
and  it  must  do  this  unless  it  is  willing  to  surrender  its 
existence,  and  unless  there  is  to  grow  up  amongst 
the  population  the  conviction  either  that  the  state  is  im- 
potent or  that  the  aims  of  social  democracy  are  justifi- 
able. *  *  *  Social  democracy  has  declared  war 
against  the  state  and  society,  and  has  proclaimed  their 
subversion  to  be  its  aim.  It  has  forsaken  the  ground  of 
equal  right  for  all,  and  it  can  not  complain  if  the  law 
should  only  be  exercised  in  its  favor  to  the  extent  con- 
sistent with  the  security  and  order  of  the  state."13 

While  Bismarck  admired  Lassalle's  doctrines  and 
aims  he  recognized  a  vital  difference  between  them  and 
those  of  Marx.  He  took  a  bold  stand  against  the  doc- 
is  Fourth  Special  Report,  p.  27. 


47  GERMAN  COMPULSORY  INSURANCE.  §  30 

trines  of  Marx  and  as  boldly  stood  with  Las'salle  in  say- 
ing "the  state  shall  be  put  fearlessly  at  the  disposal  of 
the  laboring  classes"  and  presented  to  the  Reichstag  his 
elaborate  scheme  of  compulsory  insurance  for  the  work- 
ing masses. 

§  30.  Development  of  the  insurance  idea  from  the 
early  guilds. —  We  have  next  to  briefly  point  out  the 
facts  of  the  origin  and  development  of  Industrial  Insur- 
ance by  the  German  guild  of  a  special  type  called  Knapp- 
Schaftskasse.  For  five  hundred  years  there  have  exist- 
ed in  Germany  certain  guilds  which  are  privileged  so- 
cieties of  employers  (Handwerkmeisters)  or  masters 
for  their  own  benefit  as  well  as  for  the  benefit  of  their 
journeymen  and  apprentices.  There  were  connected 
with  these  guilds  benefit  societies,  relief,  burial,  and  sick 
associations. 

It  must  be  noted  that  the  development  of  industry 
in  Germany  is  of  so  much  later  date  than  in  England  or 
America  that  some  illustrations  must  be  given  in  order 
to  appreciate  the  bearing  of  trade  legislation  upon  social 
questions. 

Industry  with  a  world  market  had  attained  such  a 
development  in  1802  in  England  as  to  bring  into  exist- 
ence the  first  interference  with  the  freedom  of  industry 
—the  Morals  and  Health  act.  In  1832  the  Reform  Bill 
was  enacted.  During  this  period  of  30  years,  the  popu- 
lation of  cities  in  England,  like  Manchester,  had  on  an 
average  increased  150  per  cent.  The  earlier  economic 
students  could  not  foresee  the  conditions  which  this  new 
grouping  of  population  would  bring  upon  society.  Dur- 
ing the  period  of  1802  to  1844  many  acts  were  passed  in 
England  first  to  protect  working-children,  then  later  for 
the  protection  of  working-women.  Scarcely  a  law  has 
been  passed  to  guard  the  safety  of  the  apprentice,  the 
child,  the  woman,  or  of  poor  men  in  dangerous  employ- 


§  30       WORKMEN'S  COMPENSATION  AND  INSURANCE.        48 

ments,  that  has  not  been  long  and  stubbornly  fought 
upon  theoretical  grounds  as  to  the  nature  of  trade,  of 
economic  law,  or  of  natural  law.  Today  humane  princi- 
ples of  legislation  have  been  so  far  developed  in  respect 
to  legislation  demanded  for  any  set  of  workmen  as  to 
make  the  inquiry  one  not  concerning  economic  or  natur- 
al law  but  rather  concerning  the  plain  practical  exigen- 
cies of  the  health  and  safety  of  the  laborers.  Two  gen- 
erations passed  away  before  this  position  was  reached 
even  by  statesmen! 

This  principle  of  insurance  has  never  been  denied  in 
Germany,  except  in  part  by  those,  who,  during  the  period 
from  1830  to  1870,  were  the  followers  of  Adam  Smith 
and  known  as  the  Manchester  party  in  Germany.  They 
exercised  a  powerful  and  beneficial  influence  upon  the 
economic  policy  of  that  country. 

However,  beginning  with  the  compulsory  industrial 
insurance  legislation  of  1883,  legislation  of  this  kind  has 
freed  itself  almost  wholly  from  this  economic  liberalism. 
It  should  be  noted,  however,  that  among  the  achieve- 
ments of  this  school  there  should  be  mentioned:  the 
Tariff  Union;  Uniformity  in  Weights  and  Measures; 
the  doing  away  with  imprisonment  for  debt  and  the 
usury  laws;  the  removal  of  marriage  restrictions,  of 
river  tolls,  and  "especially  the  larger  freedom  intro- 
duced into  the  whole  body  of  trade  regulations  (Gewer- 
beordnung),  together  with  the  Freiziigigkeit  (the  right 
to  go  about  the  country  as  one  likes),  against  which 
principle,  ominously  enough,  powerful  voices  are  now 
more  and  more  heard."14 

Bismarck  rejected  the  liberal  and  voluntary  indus- 
trial policy  and  appealed  to  the  earlier  and  older  social 
legislation  which  preceded  the  liberal  legislation.  * 

1*  Fourth  Special  Report,  p.  31. 


49  GERMAN  COMPULSORY  INSURANCE.  §  30 

John  Graham  Brooks  describes  the  conditions  sur- 
rounding the  worker  and  his  guilds  as  follows : 

"A  state  of  serfdom  practically  existed  in  Bavaria 
until  1808.  Freedom  to  choose  one's  handicraft,  even, 
was  not  allowed  in  other  parts  of  Germany  until  1810. 
Until  the  revolution  of  1848  countless  petty  restrictions 
hemmed  in  the  life  of  the  laborer  as  well  as  of  industry 
in  general.  The  most  advanced  part  of  Germany,  Prus- 
sia, only  brought  in  liberty  for  the  laborer  to  move  freely 
from  town  to  town  (Freiziigigkeit)  in  1842.  Though 
the  laws  of  Stein  and  Hardenburg  had  done  so  much  to 
destroy  the  old  guilds,  they  yet  dragged  lumbrously 
along  until  the  Prussian  trade  regulations  of  1845,  which 
mark  so  important  a  change  in  this  history  as  to  demand 
closer  consideration.  The  law  of  1842,  allowing  laborers 
to  pass  freely  from  one  place  to  another,  introduced 
changes  as  great  as  the  Stein  legislation  of  1811,  which 
broke  down  so  many  of  the  old  guild  privileges.  From 
a  condition  under  which  the  choice  of  a  trade  was  for 
the  laborer  and  not  by  him,  to  conditions  under  which 
he  could  freely  elect  his  craft,  the  difference  was  pro- 
found. In  many  parts  of  Germany  the  old  trade  mono- 
polies existed  in  such  form  as  to  make  the  free  develop- 
ment of  trade  impossible.  Not  only  was  competition 
shut  out  in  the  more  considerable  trades  of  tinning  and 
milling,  but  especially  in  the  minor  provinces,  such 
monopolies  extended  to  the  smaller  trades  of  the  barber 
and  chimney-sweep.  That  these  special  privileges  of  the 
guilds  would  all  have  been  swept  away  if  the  Stein  leg- 
islation had  been  allowed  to  do  its  work  is  evident.  The 
irew  freedom  was  feared,  however,  and  the  trade  regu- 
lations of  1845  are  a  protest  against  the  destruction  of 
vested  rights.  That  portion  of  the  trade  laws  which 
more  especially  concerns  us  recognizes  two  kinds  of 

4— BOYD  W  C 


§  30       WORKMEN'S  COMPENSATION  AND  INSURANCE.        50 

sick  associations — the  apprentice  society  and  the  guild 
(Innung). 

In  section  144  the  apprentices  and  assistants  are 
permitted  to  retain  their  mutual  benefit  societies,  but  it 
is  reserved  to  change  and  adapt  them  to  new  and  exist- 
ing circumstances.  New  societies  may  also  be  formed 
under  conditions  fixed  by  government.  An  apprentice 
is  not  allowed  to  be  excluded  from  such  a  society  be- 
cause he  does  not  work  with  a  member  of  a  guild  (sec- 
tion 169).  To  the  guilds  is  also  given  the  right  to  form 
sick,  burial  and  relief  societies,  as  well  as  savings  banks, 
though  they  are  not  compelled  to  form  such  society  for 
every  branch  of  industry.  It  will  be  seen  that  these  laws 
of  1845,  in  reacting  against  those  forces  which  threatened 
to  destroy  the  guilds,  yet  endeavored  to  preserve  as 
much  liberty,  self-government,  and  self-discipline  as 
was  possible  in  an  effort  to  save  the  guilds  and  continue 
their  work.  The  workmen  also  were  frightened  by  the 
loss  of  a  powerful  influence  which  the  guild  had  secured 
to  them.  Before  1845  they  expressed  fears  such  as 
would  be  felt  by  trade  unionists  of  today  if  their  rights 
of  organizing  were  threatened.  The  conservative 
character  of  the  law  is,  however,  seen  in  such  provisions 
as  that  which  compels  those  who  form  a  guild  to  prove 
their  capacity  before  some  authorized  body  of  exam- 
iners, as  the  academy  of  arts  or  the  committee  appointed 
for  such  purpose.  Consent  to  enter  a  guild  might  be 
refused  by  the  communal  authorities  to  criminals,  to 
bankrupts,  to  those  residing  where  a  similar  guild  al- 
ready exists,  etc.  All  persons  in  mechanical  trades  who 
belong  to  no  guild  could  by  local  statute  be  formed  into 
an  'inferior  guild.'  The  community  is  here  supreme 
over  the  decisions  of  the  individual.  Although  the  elite 
workmen  were  freed  from  compulsion  to  join  such  so- 
cieties, the  less  able  workmen  were  so  far  under  con- 


51  GERMAN  COMPULSORY  INSURANCE.  §  3! 

strain!  that  they  must  give  satisfactory  reason  before 
the  authorities  why  they  failed  to  form  or  join  some 
benefit  society."15 

§  31.     Miners'  societies  (Knappschaftskassen). — The 

fundamental  principles  of  workmen's  insurance  as  illus- 
trated by  the  miners  societies  are  thus  pointed  out  by 
Mr.  Brooks: 

"An  illustration  may  now  be  given  from  among  the 
miner's  societies  (Knappschaftskassen)  which  will  illus- 
trate in  more  detail  the  actual  working  of  the  insurance 
principle.  In  this  bit  of  history  is  to  be  seen  almost 
every  feature,  good  and  bad,  which  the  imperial  scheme 
now  presents.  These  societies  provided  for  sickness, 
accident,  burial,  and  also  granted  pensions  to  orphans, 
widows,  and  invalids,  thus  covering  even  more  than 
the  state  laws  now  cover.  In  its  later  development  the 
mining  society  was  administered  by  a  committee  com- 
posed half  of  employers,  half  of  laborers.  The  contri- 
butions were  also  divided  between  both.  The  employer 
was  made  responsible  for  the  entire  sum,  being  allowed 
later  to  deduct  the  laborers'  share  from  the  wages  when 
paid.  Thus  it  is  seen  why  this  special  form  of  associa- 
tion was  chosen  by  the  government  as  a  type  upon  which 
to  build  the  imperial  structure."16 

§  32.  Ethical  basis  of  system. — Reviewing  the  long 
and  serious  strife  which  attended  the  development  of 
the  principles  of  compulsory  workmen's  insurance  dur- 
ing the  period  of  1790  to  1854  it  is  important  to  recognize 
the  incontestable  fact  of  history,  that  these  laws  were 
the  outgrowth  of  the  ethical  elements  of  sympathy,  pity, 
and  good  will,  playing  so  important  a  part  as  to  mould 

15  Fourth  Special  Report,  1893,  p.  31. 
ie  Fourth  Special  Report,  p.  37. 


§  32       WORKMEN'S  COMPENSATION  AND  INSURANCE.        '52 

first  the  customs  and  then  the  laws  of  their  primitive 
insurance  societies.  Here  Mr.  Brooks  further  observes: 
"Nothing  is  more  obvious  than  the  fact  that  mere 
business  did  not  alone  dictate  those  first  regulations  that 
made  the  strong  and  the  fortunate  willingly  help  to  bear 
the  burden  of  the  weak.  The  opponents  of  state  insur- 
ance make  no  issue  as  to  this  fact;  they  only  insist  that 
the  state  cannot,  from  its  very  nature,  carry  out  and 
enforce  such  principles  as  those  upon  which  universal 
insurance  rests.  The  believers  in  such  state  insurance 
carry  over  the  ethical  idea,  that  already  existed  in  the 
small  free  group,  into  the  state  asserting  that  the  state, 
with  compulsory  powers,  is  alone  competent  to  secure 
the  blessing  of  such  insurance  to  the  whole  masses  of 
the  people.  Thus  there  is  a  distinct  issue  of  fact  rather 
than  of  theory.  From  the  thirteenth  century  to  the 
time  of  Frederick  the  Great,  nothing  like  compulsory 
insurance,  even  in  small  mines,  can  be  said  to  have  ex- 
isted. Until  the  Prussian  law  of  1854  there  was  no  gen- 
eral state  compulsion  for  miners."17 

17  Fourth  Special  Report,  p.  39. 


CHAPTER  V. 


THE  ECONOMIC  BASIS  OF  COMPULSORY  INDUSTRIAL  INSUR- 
ANCE AND  COMPENSATION  LAWS  FOR  INJURED  WORK- 
MEN. 


Sec. 

33.  Statement    of    problem    from 
the  economic  standpoint. 

34.  Statistical  studies  exhibiting 
effects  of  old  and  new   sys- 
tems of  compensation. 

35.  Statistical   experience  under 
compulsory    State   insurance 
in  Germany. 

36.  The   question    of   fault   and 
prevention      of     accidents — 
compensation — German    sta- 
tistics. 

37.  Experience  in  New  York. 

38.  The  Pittsburgh  survey. 

39.  The  Wisconsin  bureau  of  sta- 
tistics. 

40.  The    report    of    the    Illinois 
commission. 

41.  Ohio  statistics. 

42.  Average  amount  received  in 

settlement  in  Ohio  under  old 
system. 

43.  Attorney  fees  under  old  sys- 

tem in  Ohio. 


Sec. 

44.  Social  and  economic   results 
of  accidents. 

45.  Liability  insurance  statistics 
in  Ohio. 

46.  German  statistics  analyzed. 

47.  Classification    of    causes    of 
accidents  in  Germany. 

48.  Miscellaneous  data. 

49.  Statistical  results  of  the  per 
cent,  of  workingmen  who  re- 
ceive compensation  under  the 
common    law    and    liability 
laws. 

50.  Fundamental    economic    con- 
clusions. 

51.  Remedies    proposed — German 
and  English  plans. 

52.  Specific  provision  against  the 
economic  insecurity  of  work- 
ingmen in  the  United  States. 

53.  Argument  for  joint  contribu- 

tion  by   employer   and    em- 
ploye. 


§  33.  Statement  of  problem  from  the  econo- 
mic standpoint. — It  is  proposed  in  this  chapter  to  present 
the  economic  basis  for  the  substitution  of  a  new  remedy, 
namely,  compulsory  industrial  insurance  for  working- 
men,  or  workmen's  compensation  acts,  in  lieu  of  the 
common  and  statutory  liability  law  remedies,  as  a  means 
for  compensating  workmen  who  are  injured  in  course 

of  their  employment. 

53 


§  34       WORKMEN'S  COMPENSATION  AND  INSURANCE.        54 

It  will  be  shown  not  only  that  the  common  (and  lia- 
bility) law  remedy  in  its  present  form  does  not  furnish 
compensation  of  any  kind  in  to  exceed  12%  of  the  cases 
of  injuries  to  employes,  and  even  in  those  cases  in  which 
compensation  is  paid,  the  compensation  paid  does  not 
on  the  average  exceed  one-fifth  of  what  is  regarded  as 
adequate  compensation,  but  also  that  no  modification  of 
the  common  law  remedy  can  be  made  whereby  these  re- 
sults will  be  materially  improved.  Hence  that  the  old 
common  law  remedy  must  be  abandoned  and  a  new 
remedy  substituted  therefor. 

§  34.  Statistical  studies  exhibiting  effects  of  old  and 
new  systems  of  compensation. — In  the  evolution  of  eco- 
nomic and  sociological  problems  of  a  nation,  already 
largely  industrialized,  gross  inequalities  in  the  material 
condition  of  the  different  classes  of  its  citizens  arise, 
and  when  the  public  mind  becomes  conscious  of  the 
hardships  flowing  from  these  inequalities,  the  legislative 
and  judicial  arms  of  the  state  are  called  upon  to  regulate, 
to  equalize,  and  to  adjudicate  equitably  such  econpmic 
abuses  and  hardships. 

The  first  steps  to  be  taken  in  adjusting  and  relieving 
society  of  the  said  abuses  are  to  inquire  into  and  deter- 
mine what  the  exact  causal  facts  are,  from  which  flow 
these  abuses,  before  the  legislative  and  judicial  arms  of 
the  State  can  formulate  and  apply  a  just  and  equitable 
remedy.  It  is  the  determination  of  the  causal  facts  of 
these  economic  abuses  and  the  magnitude  of  their  evil 
effects  that  constitute  the  most  difficult  step  to  accom- 
plish, and  upon  the  clear  determination  of  which  the 
legislatures  and  the  courts  of  last  resort  insist  first  upon 
knowing,  before  they  will  enact  and  sustain  the  putting 
into  operation  of  an  adequate  remedy  for  the  injurious 
economic  abuses  involved  in  this  problem. 


55  ECONOMIC  BASIS.  §  35 

Therefore,  the  discussion  of  "what  provisions  can  be 
made  for  workingmen  and  their  dependents,  to  avoid 
the  economic  insecurity  which  accompanies  the  modern 
wage  system,"  resolves  itself  into  the  following  plan: 

(A)  The  location  and  determination  of  the  causal 
facts  and  their  fundamental  characteristics  which  pro- 
duce the  economic  insecurity  of  workingmen,  and  char- 
acteristics which  accompany  the  modern  wage  system, 
shall  first  be  analyzed. 

(B)  The  remedy  to  cure  these  economic  inequalities 
and  in  what  way  the  legislative  and  judicial  authorities 
of  the  States  can  put  the  proposed  remedy  into  opera- 
tion and  perpetuate  the  same. 

§  35.  Statistical  experience  under  compulsory  State 
insurance  in  Germany. — In  1887  there  were  insured 
against  sickness  and  accidents  in  Germany  3,861,560 
workingmen  among  319,453  establishments,1  and  the 
number  of  notices  of  accidents  was  106,001.  A  special 
analysis  of  the  different  elements  of  the  causes  of  these 
accidents  will  be  found  in  the  following  section. 

Persons 

In  1907,  these  were  Insured  In  Germany  against  accidents: 2  Insured 
Industrial,   building,   and   marine  trade   associations 

(associations,  66;  establishments,  637,118) 9,018,367 

Agriculture  and  forestry  trade  associations  (associa- 
tions, 48;   establishments,  4,710,401) 11,189,071 

State  executive  boards  (boards,  535) 964,589 


21,172,027 

In  1897  there  were  Insured  In  Germany  against  accidents  In 
the  same  associations  and  409  State  executive  boards, 
In  round  numbers 18,500,000 

§  36.    The  question  of  fault  and  prevention  of  acci- 
dents— Compensation — German  statistics. — The  follow- 

1  Fourth  Special  Report  of  the  Commissioner  of  Labor,  1893,  p.  82. 

2  Frankel  and  Dawson,  Worklngman's  Insurance  In  Europe,  1910, 
p.  101. 


§  3°          WORKMEN  S  COMPENSATION  AND  INSURANCE.  56 

ing  table  shows  the  accident  statistics  of  industries  for 
the  three  years,  1887,8  18973  and  1907,4  under  the  Ger- 
man law: 


1887 
By  fault  of —  Per  cent. 

Employer 20.47 

Employe    26.56 

Both  parties 8.01 


1897 

Per  cent. 
17.30 
29.74 
10.14 


1907 

(46,000 

accidents) 

Per  cent. 

16.81 

28.89 

9.94 


Due  to  negligence  of  the  parties 55.04 

Due  to  inevitable  risks  of  the  in- 
dustries and  other  causes —    44.96 


100.00 


57.18 


42.82 


100.00 


55.64 


44.36 


100.00 


This  table,  covering  a  period  of  20  years  of  exper- 
ience, shows  not  only  the  elements  of  fault  which  enter 
into  the  problem,  but  also  supplies  a  valuable  basis  for 
further  improvement  of  preventive  measures,  since  from 
55  to  57  per  cent,  of  all  accidents  are  due  either  to  the 
fault  of  the  employer,  employe,  or  their  combined  negli- 
gence. 

It  is  of  interest  in  this  connection  that  the  tables  of 
the  Minnesota  and  Wisconsin  labor  departments  ascribe 
from  40  to  50  per  cent,  of  all  industrial  accidents,  on  the 
average,  as  due  solely  to  the  inevitable  risks  of  the  busi- 
ness. The  Austrian  tables  show  70  per  cent,  are  attri- 
buted to  this  cause.5 

It  is  first  to  be  noted  that  this  table  represents  the 
experience  of  the  operation  of  the  compulsory  German 
State  Insurance  Law,  for  a  period  of  25  years,  under  the 
operation  of  which,  from  4,000,000  to  21,000,000  work- 
ingmen  and  their  dependents  engaged  in  all  possible  in- 

3  Dr.   George  Zacher,   Introduction  to  Workmen's  Insurance  in 
Germany,  p.  14. 

4  Bulletin  of  Bureau  of  Labor,  1908,  p.  120  and  §  47. 

5  Report  of  the  New  York  Commission,  p.  25. 


57  ECONOMIC  BASIS.  §  36 

dustrial,  governmental,  and  agricultural  occupations  of 
a  great  nation,  with  respect  to  the  determination  of  the 
element  of  fault  entering  into  the  causes  of  accidents  to 
workmen.  We  shall  define  the  natural  hazard  of  any 
occupation  by  the  equation: 

Inevitable  risk  -j-  combined  negligence  of  both  em- 
ployer and  employe=natural  hazard. 

From  this  table  it  follows : 

1887  1897  1907 

Fault  of  both  parties 8.01  10.14  9.94 

Inevitable   risks    .  _  44.96  42.82  44.36 


Natural  hazard 52.97  52.96  54.30 

Average,  53.41  per  cent. 

During  the  period  1887-1897  there  were  put  under 
the  operation  of  the  .German  law  the  workingmen  em- 
ployed in  the  occupations  of  agriculture,  forestry,  build- 
ing trades,  to  the  number  of  12,250,000,  who  heretofore 
were  not  insured.6  This  large  class  of  workingmen  were 
the  most  ignorant  and  poorest  trained  of  all  the  work- 
ingmen insured  under  the  law.  It  will  be  seen  that  the 
per  cent,  of  the  causes  of  accidents  attributable  to  the 
negligence  of  the  employe  increased  from  26.56  per  cent, 
in  1887  to  29.74  per  cent,  in  1897,  an  increase  of  almost 
3  per  cent.  During  the  next  decade,  1897-1907,  this  ele- 
ment of  fault  fell  from  29.74  per  cent,  to  2'8.89  per  cent, 
while  the  number  of  such  workingmen  remained  practi- 
cally at  the  12,000,000  mark.  This  is  due  to  a  gradual 
improvement  of  the  ways  and  means  of  preventing  acci- 
dents so  carefully  studied  in  Germany. 

The  superior  intelligence  of  the  employers  made  a 
more  marked  improvement  in  the  reduction  of  the  ele- 
ment of  fault  due  to  the  employer's  negligence. 

Thus  the  causes  of  accidents  attributable  to  the  em- 

«  Frankel  and  Dawson,  Worklngmen's  Insurance  In  Europe,  p.  101. 


§  36      WORKMEN'S  COMPENSATION  AND  INSURANCE.        58 

ployer  in  1887  was  20.47  per  cent;  in  1897  it  fell  to  17.30 
per  cent;  and  during  the  next  decade  it  fell  to  16.81  per 
cent  in  1907.  But,  notwithstanding  these  improvements 
in  the  reduction  of  the  element  of  fault,  yet  the  per  cent 
of  the  causes  of  accidents  due  to  natural  hazard  remains 
practically  constant,  as  shown,  at  53.41  per  cent. 

This  leads  us  to  the  first  fundamental  conclusion  of 
primary  evidence  in  our  problem: 

That  no  matter  how  careful  the  employer  is,  or  how 
careful  the  employe  may  be,  or  how  high  the  efficiency 
of  the  State  may  rise  in  the  application  of  ways  and 
means  in  the  prevention  of  accidents,  the  natural  hazard 
remains  practically  constant.  That  on  the  average  from 
52  per  cent  to  53  per  cent  of  the  causes  of  all  accidents 
are  due  to  the  natural  hazard  of  the  business. 

This  is  the  first  element  of  insecurity  of  workingmen 
under  the  modern  wage  system,  for  the  reason  that  an 
injured  workman  can  not  recover  at  all  in  an  action  at 
law  for  damages  on  account  of  an  accident  received 
while  working  for  his  master  until  he  can  prove  that  his 
master  was  negligent  and  that  such  negligence  was  a 
contributing  cause  to  his  injury. 

The  object  of  giving  an  injured  workman  a  cause  of 
action  for  injuries  is  not  only  to  compensate  the  work- 
man especially  in  the  case  of  death  or  total  disability, 
but  principally  to  furnish  some  compensation  to  his 
dependents,  who  might  become  public  charges  when 
their  means  of  support  are  cut  off  by  such  an  accident. 

The  entire  equity  side  of  our  courts  has  been  built 
up  on  the  theory  that  justice  should  be  done  between 
man  and  man  when  the  common  law  does  not  furnish 
any  remedy  or  does  not  furnish  an  adequate  remedy. 

Here  in  this  problem  there  is  the  one  element  alone 
of  52  per  cent  of  all  cases  of  injury  for  which  the  com- 
mon law  does  not  presume  to  furnish  any  relief  at  all — 


59  ECONOMIC  BASIS.  §  36 

none  for  the  injured  workman  and  none  for  the  depend- 
ents who,  in  most  of  such  cases,  must  be  supported  by 
the  community  in  which  they  live.  This  leads  us  to  the 
second  fundamental  conclusion  of  primary  evidence  in 
our  problem. 

The  table  shows  that  the  element  of  the  causes  of  ac- 
cidents which  were  attributable  to  the  workingmen's 
own  negligence  (taking  the  workmen  of  a  State  or  Na- 
tion as  a  whole)  is  on  the  average:  1/3  (26.56  per  cent+ 
29.74  per  cent+28.89  per  cent)  =28.39  per  cent. 

The  effect  on  dependents  is  just  the  same  whether 
the  cause  of  the  injury  was  due  to  the  negligence  of  the 
employe,  to  that  of  the  employer,  or  to  the  natural  haz- 
ard of  the  business.  The  common  law  in  theory  denies 
the  injured  workman  relief  in  all  of  these  cases,  to-wit, 
28.39  per  cent,  and,  further,  there  is  no  cause  of  action 
at  all  in  the  53.41  per  cent  of  the  cases  due  to  the  natural 
hazard.  Or  in  the  combination  of  the  two  elements, 
natural  hazard  and  negligence  of  the  workmen,  that  is, 
in  81.80  per  cent  of  the  cases  of  injury  the  common  law 
does  not  presume  to  furnish  any  compensation  either  to 
the  workman  or  his  dependents. 

The  third  conclusion  of  primary  evidence  in  our 
problem  relating  to  the  economic  insecurity  of  the  work- 
ingman  under  the  modern  wage  system  in  the  United 
States  is: 

That  the  per  cent  of  cases  of  injuries  to  working- 
men,  the  causes  of  which  are  attributable  to  the  negli- 
gence of  the  employer,  is  on  the  average  but  18.20  per 
cent  of  the  cases. 

It  is  susceptible  of  proof  that  the  foregoing  elements 
of  negligence  of  employer,  employe,  and  natural  hazard 
are  practically  the  same  in  the  United  States  as  they  are 
in  Germany. 

It  will  be  hereafter  shown  in  presenting  the  "Statis- 
tical experience  of  workingmen  under  the  common  law 


§  37       WORKMEN'S  COMPENSATION  AND  INSURANCE.        60* 

and  liability  laws  in  the  United  States,"  that  while  in 
theory  the  common-law  remedy  furnishes  compensa- 
tion in  18.20  per  cent,  of  cases  of  injuries  to  working- 
men,  that,  however,  in  practice  that  compensation  in 
any  amount  is  paid  in  less  than  6  per  cent,  to  less  than 
\2l/2  per  cent,  of  the  cases,  and  then  only  in  amounts 
about  one-fifth  of  adequate  compensation. 

§  37.  Experience  in  New  York. — During  the  years 
1906,  1907  and  1908,  ten  insurance  companies,  which 
keep  employers'  liability  records,  doing  business  in 
New  York,7  received  in  premiums  from — 

Employers   $23,524,000 

Paid   to  injured   employes 8,560.000 


Waste    $14,964,000' 

Nothing  could  more  strikingly  set  forth  the  waste 
of  the  present  system.  Only  36.34  per  cent  of  what  em- 
ployers pay  in  premiums  for  liability  insurance  is  paid 
in  settlement  of  claims  and  suits.  Thus,  for  every  $100 
paid  out  by  employers  for  protection  against  liability  to 
their  injured  workmen,  less  than  $37  is  paid  to  those 
workmen ;  $63  goes  to  pay  the  salaries  of  attorneys  and 
claim  agents  whose  business  it  is  to  defeat  the  claims  of 
the  injured,  to  the  cost  of  soliciting  business,  to  the  cost 
of  administration,  to  court  costs,  and  to  profit. 

Out  of  this  36.34  per  cent  the  injured  employe  must 
pay  his  attorney.  The  same  report  shows  that  the  at- 
torney gets  26.13  per  cent  of  what  is  paid  to  the  injured 
employe.  This  investigation  covers  46  cases  where  the 
recovery  was  above  $1,500  each.  In  small  recoveries  the 
attorney  fees  take  a  larger  proportion.  This  report 
shows  that  not  more  than  somewhere  between  20  and  25 
per  cent  of  the  money  paid  by  the  employing  class  goes 

7  First  report  of  the  Employers'  Liability  Commission,  New  York, 
p.  31. 


6 1  ECONOMIC  BASIS.  §  38 

actually  into  the  pockets  of  injured  workmen  for  their 
•dependent  families  in  death  cases. 

§  38.  The  Pittsburgh  survey.7* — The  investigation 
recently  conducted  in  Allegheny  county,  Pa.,  under  the 
direction  of  the  Pittsburgh  survey  showed  that  out  of 
355  cases  of  men  killed  in  industrial  accidents,  all  of 
whom  were  contributing  to  the  support  of  others  and 
two-thirds  of  whom  were  married,  89  of  the  families  left 
received  not  more  than  $100,  and  61  families  received 
something  more  than  this  $100.  In  other  words,  57  per 
cent,  of  these  families  were  left  by  their  employers  to 
bear  the  entire  burden  of  income  loss  and  granting  that 
all  unknown  claims  would  be  decided  for  the  plaintiffs, 
then  only  26  per  cent,  received  in  compensation  for  the 
death  of  a  regular  income  provided  more  than  $500,  a 
.sum  which  would  approximate  one  year's  income  of  the 
lowest  paid  of  the  workers  killed. 

The  proportion  of  the  loss  borne  by  employers  in  in- 
jury cases  does  not  differ  greatly  from  that  in  death 
cases. 

Thus,  out  of  288  injury  cases,  of  the  married  men 
alone,  56  per  cent  received  no  compensation;  of  single 
men  contributing  to  the  support  of  others,  69  per  cent 
received  no  compensation;  of  single  men  without  de- 
pendents, 80  per  cent  received  no  compensation. 

§  39.    The    Wisconsin    bureau    of   statistics. — The 

•great  financial  losses  borne  by  the  workmen  are  set  forth 
by  the  Wisconsin  bureau  of  labor  and  statistics  in  the 

following  report  of  306  non-fatal  cases  of  injuries : 

Cases.  Per  cent. 

Beceived'  nothing  from  employer 72  23.5 

Received  amount  of  doctor  bill  only 99  32.4 

Received  amount  of  part  of  doctor  bill  only 15  4.9 

Received  something  in  addition  to  doctor  bills 91  29.7 

Received  something  but  not  doctor  bills 29  9.5 

Total    306  100.0 

T»In  Work  Accidents  and  their  Cost  by  Crystal  Eastman,  Chari- 
ties and  the  Commons,  March,  1909. 


§  40      WORKMEN'S  COMPENSATION  AND  INSURANCE.        62 

In  other  words,  we  may  say  that  in  two-thirds  of  the 
cases  part  or  all  of  the  doctor  bills  were  paid,  but  in  less 
than  one-third  was  anything  more  paid,  and  in  about 
one-fourth  of  the  cases  nothing  whatever  was  paid. 

Of  131  non-fatal  cases  in  Wisconsin,  concerning 
which  reports  were  secured  by  factory  inspectors,  the 
following  disposition  was  made: 

Cases.        Per  cent. 

Received  nothing  from  employer 28  21.37 

Received  doctor  bills  only 56  42.75 

Received  something — doctor  bills 10  7.63 

Received  something,  but  not  doctor  bills 34  25.96 

Not  settled  _  3  2.29 


Total 131  100.00 

§  40.  The  report  of  the  Illinois  commission. — The 
employers'  liability  commission  of  the  State  of  Illinois 
has  recently  made  a  report  of  its  investigation  of  indus- 
trial accidents  and  employers'  liability  at  a  cost  of 
$10,000.8 

More  than  5,000  individual  accidents  were  investi- 
gated and  recorded,  together  with  comparative  figures 
and  analysis.  A  few  words  as  to  what  the  report  shows 
may  be  of  value : 

Six  hundred  and  fourteen  fatal  accidents  are  re- 
corded. 

The  families  of  214  of  these  workers  received  nothing 
in  return  for  the  loss  of  the  bread-winner. 

One  hundred  and  eleven  damage  suits  are  pending  in 
court. 

Twenty-four  cases  have  been  settled  through  court 
proceedings. 

Two  hundred  and  eighty-one  families  settled  direct 
with  the  employer. 

Skilled  railroad  employes,   in  settlement  for   death 

8  The  summary  which  follows,  is  taken  from  statistics  prepared 
by  Edwin  R.  Wright,  Secretary  of  the  Commission. 


63  ECONOMIC  BASIS.  §  4O 

claims,  averaged  about  $1,000;  steel  workers,  $874;  rail- 
road laborers,  $617;  skilled  building  tradesmen,  $348; 
skilled  electric  railway  employes,  $310;  unclassified 
workmen,  $311;  miscellaneous  trades,  $292;  packing- 
house employes,  $234;  general  laborers,  $154;  mine 
workers,  $155;  electric  railway  laborers,  $75;  teamsters, 
none ;  building  laborers,  none. 

A  further  summary  may  be  offered.  Of  every  100 
industrial  accidents,  15  go  to  court — 7  are  lost  and  8  are 
won.  Ninety-two  injuries  out  of  every  one  hundred  re- 
ceive no  compensation.  This  includes  both  fatal  and 
non-fatal  accidents. 

Another  interesting  feature  is  this :  A  thorough  search 
through  the  record  reveals  53  fatal  cases  of  recent  date. 
In  fatal  cases  the  usual  defenses  of  the  employer — the 
fellow-servant  doctrine,  assumption  of  the  risk,  etc. — 
did  not  apply  or  there  would  not  have  been  a  recovery 
at  all. 

For  these — the  very  pick  of  industrial  cases — the 
average  recovery  for  death  was  only  $1,877.36.  Of  this 
an  average  amount  of  $750.95  was  paid  to  attorneys  or 
expended  in  court  fees,  etc.,  leaving  an  actual  payment 
of  $1,126.41  to  the  family  of  the  dead  worker.  Thirty- 
four  widows  were  compelled  to  seek  employment  and  65 
children  left  school  to  help  keep  the  wolf  from  the  door. 

§  41.  Ohio  statistics. — The  following  table  shows 
the  results  of  investigations  of  the  economic  effects  of 
industrial  accidents  on  workingmen  and  their  depend- 
ents, for  the  period  of  1905-1910,  in  Cuyahoga  county 
(Cleveland),  Ohio,  prepared  under  the  direction  of  the 
author  for  the  Ohio  legislature.9 

o  See  Report  of  the  Employers'  Liability  Commission  of  Ohio,  Pt. 
I,  pp.  XXXV-XLIV. 


§  42       WORKMEN'S  COMPENSATION  AND  INSURANCE.        64 

TABLE  SHOWING  PER  CENT  RECEIVING  SETTLEMENT  IN 
FATAL  CASES. 


cases 

at 

's-t 
<U 

a 
o 

^   ^ 

t:   n< 

4_>      ^j 

O     4-1 

0     03 

S? 

03 

•g 
• 
ft 

mmon 

S 

E 
i 

L 

n 

B 

^ 

[^      O 

ei 

o 

fi 

• 

Civil  status  of 
decedent. 

*-t 
o 

8 

I 

il     b£ 

a   ? 

S  2  ^ 

^55  fl   fci 

S  -M   p 

fl&            O 

M 

a  o 

J3     "^ 

i 

ecuring 

w 

•s 
« 

s 

g    g 

•i-1  d 
0  § 

".  1 
|1 

>i 

rj    y 

jj  ^ 

*    bo  -M 

cc 

0     09 

i 

i 

55  o 

_  ,   .^j 

a  ^ 

o   2 

£ 

A)      0 

III 

S     P     0 
K    M  O 

^ 

.at 

<?*  "5 

CU    03 

fc  M 

04  5 

Married  

115 

37 

10 

i 

41.7 

58.3 

Single   _ 

60 

14 

i 

25.0 

75.0 

Total    175  51  10  2  36.0  64.0 

A  settlement  was  made  with  the  dependents  in  36 
per  cent  of  all  the  cases,  and  in  42  per  cent  of  those  in 
which  the  decedent  left  a  widow.  In  practically  all  of 
these  cases  an  amicable  settlement  was  made  with  the 
representative  of  the  deceased,  appointed  by  the  probate 
court,  either  out  of  court  in  the  first  instance  or  after  the 
institution  of  a  suit. 

§  42.  Average  amount  received  in  settlement  in 
Ohio  under  old  system. — An  examination  of  285  fatal 
cases  proved  that  the  average  amount  paid  per  case  was 
$838.61.  In  176  of  these  cases  the  decedent  left  a  widow, 
and  the  average  settlement  was  $1,056.  The  exact  fig- 
ures are  given  in  the  following  table: 

TABLE  SHOWING  AVERAGE  AMOUNT  RECEIVED   IN  DEATH 

CASES. 

Average 

Civil  status  of  decedent.  Number  amount 

of  cases.  received. 

Married 176  $1,056,51 

Single   109  485.87 


Total  285  $    838.61 

The  amount  received  varied  from  funeral  expenses 
to  $5,000.     In  the  case  of  the  dependents  of  109  single 


05                                            ECONOMIC  BASIS.  §  42 

workingmen  killed,  the  average  amount  received  was 

$485.87. 

TABLE    SHOWING   AVERAGE   AMOUNT    OF    SETTLEMENT    OF 

FATAL    CASES    WITHIN    SPECIFIED    LIMITS,    AS 

DISCLOSED  BY  COURT  RECORDS. 

Average. 

Range  of  amount       Court  in  which  settlement      No.  of  amount  of 

of  settlement.  was  made.  cases.        settlement. 

Up  to  $300 Common  pleas  court 15  $    178.93 

United  States  circuit  court 4  187.50 

Probate  court 116  '     161.05 

Total    135       .  $    163.83 

$300  to  $1,000 — Common  pleas  court 14  $   542.85 

United  States  circuit  court 10  587.54 

Probate  court 83  507.78 

Total    107  $   519.81 

$1,000  to  $2,000__Common  pleas  court 8  $1,231.25 

United  States  circuit  court 14  1,290.00 

Probate  court 49  1,270.59 

Total    71  $1,269.98 

$2,000  to  $4,000— Common  pleas  court 6  $2,241.67 

United  States  circuit  court 7  2,364.28 

Probate   court    29  2,704.13 

Total    42  $2,581.13 

$4,000  and  over— Common  pleas  court 1  $4,500.00 

United  States  circuit  court—       6  5,419.17 

Probate  court 8  4,687.74 

Total  15  $4,991.66 

Total  in  common  pleas  court—    45  $  915.20 
Total  in  United  States  circuit 

court    40  1,775.26 

Total  in  probate  court 285  838.61 


Total  .  370 


$   949.19 


These  conclusions  are  deduced  from  this  table. 

5— BOTD  W  C 


§  43       WORKMEN'S  COMPENSATION  AND  INSURANCE.        66 

First.  That  the  total  amount  of  compensation  re- 
ceived by  the  dependents  of  313  workingmen  out  of  a 
total  number  of  370  killed  (or  87.86  per  cent)  of  those 
receiving  settlement  is  $165,905.35,  which  is  only  47.81 
per  cent  of  the  total  amount,  $351,200.35,  paid  to  the  de- 
pendents of  the  370  workingmen  killed;  that  the  total 
amount  of  compensation  received  by  the  dependents  of 
57  of  these  370  workingmen  killed  (or  12.14  per  cent  of 
those  receiving  settlement)  is  $183,295,  which  is  52.19 
per  cent  of  the  total  amount  paid  the  dependents  of  the 
370  workers. 

Second.  That  on  the  average  in  Ohio,  taking  the 
best  15  cases  out  of  the  370  families  left  dependent  by 
death  of  the  breadwinners,  receive  on  the  average  $4,- 
991.66.  Deducting  now  (see  next  section)  25  per 
cent  for  attorney  fees  and  $300  for  doctors'  bills,  funeral 
expenses,  and  interest  due  to  delays  in  making  settle- 
ments (assuming  that  the  largest  damages  are  paid  to 
the  earners  of  the  largest  wages),  we  have  $3,443.75  as 
the  maximum  compensation  paid  under  the  present  sys- 
tem on  an  average  for  each  of  the  best  4  cases  out  of 
100  families  left  dependent  when  the  head  of  the  family 
is  killed  in  industrial  employment.  The  obligatory  in- 
dustrial insurance  act  passed  by  both  houses  of  the  Leg- 
islature of  Ohio  in  May,  1911,  provides  a  maximum  of 
$3,400  and  a  minimum  of  $1,500,  and  doctors'  bills  and 
hospital  expenses  not  to  exceed  $200  in  all  cases. 

§  43.  Attorney  fees  under  old  system  in  Ohio. — It 
was  intended  to  give  in  the  following  table  an  accurate 
idea  of  what  per  cent,  of  the  amount  of  settlement  is  re- 
tained by  the  plaintiff's  attorney  as  remuneration  for 
his  services.  Specific  amounts  were  ascertained  in  so 
few  cases  however  that  the  table  as  given  will  be  mis- 
leading unless  taken  with  a  few  grains  of  allowance.  The 
great  majority  of  the  cases  included  in  it  were  settled 
either  out  of  court  or  before  going  to  trial.  The  aver- 


67  ECONOMIC  BASIS.  §  44 

age  for  these  cases  is  shown  to  be  about  24  per  cent, 
and  this  includes  both  fatal  and  non-fatal  cases. 

The  table  shows  that  approximately  one-fourth  of 
the  amount  received  was  paid  out  as  plaintiffs'  attorney 
fees  and  as  court  costs. 

TABLE  SHOWING  ATTORNEY  PEES  UNDER  OLD  SYSTEM  IN 

OHIO. 


o    ° 

1 

«M 

0 

«H 

O 

a 

• 

a 

Court.                    °  a 

02 

• 

5 

h 

1* 

a  « 

I  * 

03        • 

C3     O 

3  B 

8 

•3  6 
•2  o 

g 

{3 

o  -g 

0    Jj 

O 

£  .2 

0    -2 

H  §i 

H  13 

£ 

Common  pleas  

53 

$78,500 

$20,650.82 

263 

United  States  circuit  court  — 

13 

56,850 

14,100.00 

24.6 

Probate  Court  

88 

97,862 

19,918.73 

20.3 

§  44.  Social  and  economic  results  of  accidents. — An 
individual  investigation  to  determine  the  social  and  eco- 
nomic conditions  of  families  deprived  by  industry  of  their 
breadwinners  was  made  in  86  cases.  The  results,  as 
compiled  in  the  following  table,  show  that  nearly  56  per 
cent,  of  the  widows  were  compelled  to  go  to  work,  and 
at  an  average  weekly  wage  of  $5.51.  Altogether  in 
these  homes  there  were  178  children,  about  70  per  cent, 
of  whom  were  under  twelve  years;  59  per  cent,  of  the 
others  were  forced  to  go  to  work.  The  wretched  condi- 
tion in  which  some  of  these  families  were  found  can  not 
be  depicted  by  means  of  tables. 

TABLE    SHOWING    SOCIAL   AND    ECONOMIC    CONDITIONS    OF 
WIDOWS  AND  CHILDREN. 

WIDOWS. 


>mpelled 

Q 

o 

02 
0 

•4-* 
*M 

o 

0 

s 

-' 

I 

irtained. 

1 

o 

•4-1 
O 

3 

• 

1 

B 

i 

c. 

0 

o 

^ 

a 

h 

£ 
§ 

o 

-w 
g 

! 

s 

Id 
o 
o 

* 

eS 

2 

g 

o 

E 
o 
& 

o 

2  Si 

0;     tO 

s 
£ 

9 

5< 

O 

£ 

> 

fc 

s 

£ 

I 

p.      ~ 
«<     ^ 

Widow's  homes  visited.  86        48        55.8        38  79.2  $5.51 


§  45       WORKMEN'S  COMPENSATION  AND  INSURANCE.  68 

CHILDREN. 

Number  to  go  to 
Ages.  Number.  work. 

Per  cent. 

Under  12 124                   ._  00 

12  to  18 45                    27        or  60 

IS  to  21—                                                          9                     5        or  55 


Total  178  32 

Fifty-six  per  cent,  of  the  widows  visited  and  18  per 
cent,  of  the  children  were  forced  to  go  to  work  to  earn 
a  livelihood  as  a  result  of  the  industrial  accidents. 

§   45.     Liability   insurance   statistics   in   Ohio. — In 

making  settlements  of  65,800  accidents  covering  a  period 
of  about  eight  years,  in  Cleveland,  Ohio,  the  Aetna  Lia- 
bility Insurance  Co.  made  payments  of  any  kind  in  only 
6  per  cent,  of  the  cases.10 

§  46.  German  statistics  analyzed. — In  1887  there 
were  insured  in  Germany  3,861,560  workingmen  among 
319,453  establishments,  and  the  number  of  notices  of 
accidents  was  106,001.  The  German  analysis  of  the 
15,970  accidents  which  incapacitated  workmen  for  more 
than  13  weeks  shows: 

That  19.76  per  cent,  of  the  15,970  or  3,156  injuries, 
were  attributable  to  the  fault  of  the  employers.  That 
25.64  per  cent,  of  the  15,970,  or  4,094  injuries,  were  at- 
tributable to  the  fault  of  the  injured.  That  54.60  per 
cent,  of  the  15,970,  or  8,720  injuries,  were  attributable  to 
the  combined  fault  of  the  injured  and  employer,  and  in- 
evitable risk  when  at  work.11  Thus  80.24  per  cent,  of 
15,970,  or  12,814  injuries  were  attributable  to  the  fault 
of  the  employe  and  the  inherent  dangers  of  the  industry. 
Now,  18.51  per  cent,  of  these  12,814  were  killed,  2,372; 
17.70  per  cent,  of  these  12,814  were  totally  disabled, 

10  See  Report  of  Ohio  Employers'  Liability  Commission,  Pt. 
II,  p.  208. 

n  Fourth  Special  Report  of  the  Commission  of  Labor,  1893,  p.  83. 
See  also  Table  following  page. 


69  ECONOMIC  BASIS.  §  46 

2,268;  50.88  per  cent,  of  these  12,814  were  partly  dis- 
abled, 6,520. 

CAUSES   OF  ACCIDENTS   IN  1887.12 

Attributable  causes.                                  Per  cent.  Number 
Fault  of  employer : 

Insufficient  apparatus  for  protection 10.64  1,700 

Defective  arrangement  for  carrying  on  business—     7.03  1,122 

Lack  of  directions  or  improper  ones 2.09  334 


Total 19.76        3,156 


Fault  of  injured : 

Awkwardness  or  inattention 16.49  2,634 

Disobedience  to  orders 5.17  825 

Heedlessness    1.98  316 

Failure  to  make  use  of  protective  apparatus 1.76  281 

Unsuitable  clothing  .24  38 

Total  25.64  4,094 


Fault  of  the  employed  and  injured 4.45  711 

Fault  of  third  person,  particularly  a  co-laborer 3.28  524 

No  fault  which  can  be  assigned 3.47  554 

Inevitable  risk  when  at  work 43.40  6,931 

Of  these  12,814,  12.91  per  cent,  were  incapacitated 
for  a  time  longer  than  13  weeks,  1,654. 

It  follows,  therefore,  that  out  of  15,970  employes 
whose  injuries  lasted  more  than  13  weeks,  the  common- 
law  remedies  would  give  3,156  employes  such  compensa- 
tion as  a  jury  would  assess  after  a  trial  and  all  appeals 
were  settled.18  But  the  common  law  does  not  pretend 
to  compensate  dependents  of  the  2,372  killed  in  these 
accidents  where  the  cause  of  death  could  not  be  at- 
tributed wholly  to  the  fault  of  the  employer.  Nor  does 
the  common  law  pretend  to  compensate  the  2,268  in- 
jured workmen  who  were  disabled  for  life,  the  fault  not 
being  attributable  to  the  employer.  Nor  does  the  com- 

12  Fourth  Special  Report  of  the  Commission  of  Labor,  1893,  p. 
83. 

is  Schonberg,  Hanbuch,  Vol.  II,  XXII,  pp.  737-748. 


§  47       WORKMEN'S  COMPENSATION  AND  INSURANCE.        70 

mon  law  offer  any  remedy  for  compensating  the  6,520 
injured  workmen  who  were  partially  disabled,  the  fault 
thereof  not  being  traceable  to  the  employer. 

RESULTS  OF  ACCIDENTS  IN  1887. 

Results.  Per  cent.  No. 

Death    18.51  2,956 

Incapacity  for  a  time  longer  than  13  weeks 12.91  2,061 

Lasting  incapacity  for  work: 

Entire    17.70  2,827 

Partial    50.88  8,126 

Total  68.58      10,953 

§  47.  Classification  of  causes  of  accidents  in  Ger- 
many.— A  classification  of  the  causes  of  accidents  to 
46,000  employes  collected  by  the  German  imperial  insur- 
ance office  for  the  year  1907  shows  the  following  re- 
sults.14 

1.  Due  to  negligence  or  fault  of  employer 16.81 

2.  Due    to    joint    negligence    of    the    employer    and    injured 

employe    4.66 

3.  Due  to  negligence  of  co-employe's  (fellow  servants) 5.28 

4.  Due  to  "acts  of  God" 2.31 

5.  Due  to  fault  or  negligence  of  employe 28.89 

6.  Due  to  inevitable  accidents  connected  with  the  employment-  42.05 


Total    100.00 

These  figures  grouped  to  correspond  to  those  for  one  year,  1887 
are: 

1.  Cause  of  accident  attributable  to  employer 16.81 

2.  Cause  of  accidents  attributable  to  employe 28.89 

3.  Due  to  the  inherent  risks  of  the  business...  _  54.30 


Total 100.00 

The  agricultural  laborers  were  admitted  to  insurance 
after  1887,  and  the  act  was  made  to  cover  a  large  addi- 
tional class  of  less  intelligent  laborers. 

§48.  Miscellaneous  data. — The  19,000,000  work- 
ingmen  who  earn  on  an  average  less  than  $500  per 

i*  Bulletin  Bureau  of  Labor,  January,  1908. 


71  ECONOMIC  BASIS.  §  48 

annum,  with  their  families,  represent  a  population  of 
60,000,000  people. 

Every  civilized  nation  has  decided  that  the  product 
of  labor  of  a  given  generation  must  support  all  during 
that  time.15. 

Looked  at  from  a  purely  commercial  standpoint,  that 
of  rearing  of  men  and  women  for  the  purpose  of  pro- 
ductive laborers,  the  elements  of  cost  and  waste  have 
been  studied  with  accurate  results. 

There  is  the  rearing  of  the  children  to  the  age  of  self- 
support,  with  the  result  that  13  per  cent  die  during  that 
period;  during  the  assumed  productive  life  of  wage 
earners,  it  is  estimated  that  the  loss  from  death  is  25 
per  cent  in  the  United  States.16  The  loss  through  sick- 
ness is  6  per  cent.17  Then  you  must  add  the  cost,  in 
money  and  time,  of  accidents  and  the  support  of  the 
aged. 

Under  these  conditions,  it  is  claimed  that  the  con- 
tract of  labor  through  some  inadvertence  is  made  as 
though  sickness,  accident,  invalidity,  and  old  age  had 
been  permanently  banished  from  the  earth;  that  the 
daily  wage  is  sufficient  only  for  daily  necessities;  that  a 
man  entitled  to  support  for  a  lifetime  unwillingly  con- 
sents to  a  wage  based  upon  a  portion  of  that  lifetime, 
for  the  competition  in  the  field  of  labor  is  among  the 
strong,  the  able-bodied,  the  efficient.18 

We  are  surprised  when  told  that  Germany's  poorer 
classes,  though  less  favored  by  circumstances,  maintain 
a  higher  level  of  well-being  and  far  higher  level  of  vital- 
ity than  those  of  the  United  States  and  England.19 

In  industries  outside  of  agriculture,  for  the  sake  of 

is  F.  A.  Walker,  The  Wage  Question,  p.  34. 

i«  F.  A.  Walker,  Wages,  p.  35. 

i?  C.  S.  Loch,  Insurance  and  Savings,  p.  50. 

18  A.  W.  Lewis,  State  Insurance,  p.  7. 

19  A-  Shodwell.  Industrial  Insurance,  Vol.  2,  p.  453. 


§  48       WORKMEN'S  COMPENSATION  AND  INSURANCE.        72 

comparison  we  might  take  $600  per  annum  as  a  mini- 
mum wage,  based  upon  a  family  of  five.20 

In  Massachusetts  during  a  period  of  great  prosper- 
ity with  the  necessary  attendant  cost  of  living,  out  of 
300,000  adult  workmen,  only  two-fifths  received  as  much 
as  $12  per  week.  Making  only  proper  allowance  for 
unemployment,  this  would  amount  to  considerably  less 
than  $600  per  year.21  It  has  been  said  that  the  18,000,- 
000  wage  earners  of  the  United  States  receive  an  aver- 
age wage  of  only  $400  per  annum.22 

It  is  said  that  one-half  of  the  families  of  the  country 
and  nine-tenths  of  those  in  the  cities  and  industrial  com- 
munities are  propertyless ;  that  in  a  group  of  States,  in- 
cluding Massachusetts,  one-fifth  are  in  poverty;23  that 
one-twentieth  are  paupers;24  that  one-eighth  of  the 
families  hold  seven-eighths  and  one  per  cent  hold  over 
one-half  of  the  property  of  the  country;25  and  that  71 
per  cent  of  the  people  hold  5  per  cent  of  the  wealth;28 
that  one-eighth  of  the  families  receive  over  one-half  of 
the  total  income;  and  that  two-fifths  of  the  better-paid 
laborers  receive  more  than  the  remaining  three-fifths.27 

We  can  derive  no  comfort  from  the  statistics  of  sav- 
ings-bank deposits.  Take  Massachusetts,  where  there 
seems  to  be  an  average  deposit  of  about  $300.  Investi- 
gation shows  that,  while  far  the  largest  number  of  de- 

20  J.  A.  Ryan,  A  Living  Wage,  p.  150. 

21  Compare  Massachusetts  Labor  Bulletin,  No.  44,  December,  1906, 
p.  430,  with  thirty-seventh  annual  report,  1906,  Massachusetts  Bureau 
of  Statistics  of  Labor,  pp.  279-281. 

22  Address    before    American    Association    for    Advancement    of 
Science,  December  27, 1906,  by  H.  L.  Call. 

23  Hunter,  pp.  43-60. 

24  R.  T.  Ely,  in  North  American  Review,  Vol.  152,  p.  398. 

25  C.  P.  Spahr,  Present  Distribution  of  Wealth  in  the  United 
States,  p.  69. 

2«  O.  K.  Holmes,  in  Political  Science  Quarterly,  Vol.  Ill,  p.  593. 
27  G.  K.  Holmes,  in  Political  Science  Quarterly,  Vol.  Ill,  pp!  128- 
129. 


73  ECONOMIC  BASIS.  §  48 

posits  belong  to  the  wage-earning  class,  the  deposits  of 
thirteen-fourteenths  of  the  whole  number  are  but  slight- 
ly larger  than  those  of  the  remaining  one-fourteenth; 
that  in  a  typical  bank  the  average  deposit  of  wage-earn- 
ers was  less  than  $75. 28 

In  England  "it  took  25  years  of  legislation  to  re- 
strict a  child  of  9  to  69  hours  per  week."29  "It  took  75 
years  to  ascertain  that  the  factory  act,  instead  of  weak- 
ening, had  strengthened  her  in  the  world's  rivalry."30 

The  assumption  of  any  function  by  the  State,  like 
that  of  compulsory  public  education,  is  based  upon  high- 
er grounds  than  compassion  for  a  class.  On  what 
grounds  does  the  State  regulate  the  cholera,  bubonic 
plague,  and  build  and  maintain  institutions  for  paupers 
and  for  the  insane?  Why  not  begin  higher  up  and  pre- 
vent pauperism  and  assist  those  who  do  work  of  the 
nation  and  must  fight  its  battles,  who  can  not  protect 
themselves  from  having  an  eye  put  out  or  an  arm  or  leg 
cut  off  or  their  lives  crushed  out? 

The  fourth  element  which  enters  into  the  determina- 
tion of  the  economic  insecurity  of  workingmen  under 
the  modern  wage  system  is  the  following:  While,  theo- 
retically, injured  workmen  have  a  cause  of  action  at  law 
against  their  employers  in  18.19  per  cent,  of  the  cases  of 
injuries  to  them,  we  learn  further  from  this  table  that 
the  per  cent  of  accidents  the  causes  of  which  are  attri- 
butable to  the  combined  negligence  of  the  employer  and 
employe  is  9.94  per  cent,  and  from  the  German  statis- 
tics we  learn  that  the  portion  of  this  9.94  per  cent  which 
is  due  to  the  negligence  of  fellow  servants  is  5.28  per 
cent.  But  in  the  cases  which  come  under  the  fellow- 
servant  rule  the  injured  workmen  can  not  recover.  Sub- 

28  Massachusetts  Bureau  of  Labor  Statistics,  Third  Annual  Report, 
pp.  304-313 ;  Fourth  Annual  Report,  p.  192. 

29  Hutchinson  and  Harrison,  p.  21. 

so  Traill,  Social  England,  Vol.  VI,  p.  825. 


§  49       WORKMEN'S  COMPENSATION  AND  INSURANCE.        74 

tracting  5.28  per  cent  from  the  18.19  per  cent  there  is 
left  only  12.91  per  cent  of  the  cases  in  which  injured 
workmen  can  theoretically  recover  under  the  common 
and  liability  laws  for  personal  injuries  received  while 
at  work.  See  table  §  47. 

§  49.  Statistical  results  of  the  per  cent,  of  work- 
ingmen  who  receive  compensation  under  the  common 
law  and  liability  laws. — Prior  to  the  adoption  of  com- 
pulsory State  insurance  in  Germany,  under  the  opera- 
tion of  common  and  liability  laws  injured  workingmen 
received  compensation  in  only  10  per  cent,  of  the 
cases.81 

By  reference  to  the  preceding  tables  of  results  in 
the  different  States  and  making  allowance  for  the  rot- 
ting of  evidence  between  the  time  of  the  accident  and 
that  of  the  trial  of  the  case,  the  statistics  of  the  practical 
operation  of  the  workingman's  ability  to  recover  com- 
pensation in  the  United  States  verifies  the  German  stat- 
istics that  he  can  theoretically  recover  in  from  6  to  12 
per  cent,  of  the  cases. 

The  fifth  element  which  enters  into  the  determina- 
tion of  the  "economic  insecurity  of  workingmen  under 
the  modern  wage  system"  is  gathered  from  the  miscel- 
laneous data.  The  preceding  section  shows: 

(a)  That  in  the  rearing  of  children  to  the  age  of 
self-support  13  per  cent  die  during  that  period;  (b) 
That  in  the  United  States  during  the  assumed  produc- 
tive life  of  wage  earners  it  is  estimated  that  the  loss 
from  death  is  25  per  cent;  (c)  That  the  loss  of  wages 
through  sickness  of  workingmen  is  6  per  cent.,  say- 
ing nothing  about  the  cost  of  supporting  the  aged,  etc. 

Lastly,  there  is  still  the  very  important  sixth  element 
of  the  said  insecurity — that  is,  the  average  compensa- 

31  Fourth  Special  Report  of  Commissioner  Wright,  1893. 


75  ECONOMIC  BASIS.  §  50 

lion  received  by  the  dependents  of  a  workman  killed 
while  at  work  under  the  present  wage  system. 

Take  the  most  favorable  cases,  called  court  cases; 
.for  example,  in  the  Ohio  table  in  a  preceding  sec- 
tion.33 The  average  compensation  received  by  the  fam- 
ily of  the  worker  in  fatal  cases  is  $949.  Deducting  25 
per  cent  for  attorney  fees  and  $212  for  funeral  expenses 
and  the  costs  of  delay  of  settlement,  and  you  have  a  net 
compensation  of  $500.  Under  the  Ohio  law,  just  passed, 
the  workman  receiving  the  average  wages  of  $12  per 
week  would  receive  $2,400.34  Thus  the  small  per  cent 
who  receive  any  compensation  under  the  present  wage 
system  receive  on  the  average  about  one-fifth  of  what 
is  regarded  as  a  reasonably  adequate  compensation. 

§  50.     Fundamental     economic     conclusions. — The 

foregoing  statistical  studies  show  conclusively  that 
(and  to  what  extent)  the  social  and  economic  or- 
der of  the  people  of  the  United  States  is  gravely 
threatened  in  the  permanency  of  its  security  by  the 
economic  insecurity  of  the  workingmen  which  accom- 
panies the  modern  wage  system  under  the  operation  of 
the  prevailing  common  and  liability  laws  through  which 
workingmen  must  seek  compensation  when  they  are 
injured  in  the  due  course  of  their  employment. 

Further,  it  should  be  said  that  the  ultimate  object  of 
compulsory  State  insurance  for  workingmen  is  to  con- 
serve the  normal  capacity  of  the  average  worker  of  all 
the  classes  of  workingmen  and  to  maintain  the  same  at 
the  highest  possible  efficiency. 

ss  See  §  41. 

s-*  In  the  opinion  of  the  writer  the  scientific  and  economic  value 
to  society  of  the  statistical  results  which  are  set  forth  in  Section  36 
are,  of  all  the  economic  statistics  known  to  the  writer,  of  the  great- 
est importance;  and  that  the  conclusions  derived  by  means  thereof 
are  new  discoveries  in  the  field  of  political  economy. 


§  5i       WORKMEN'S  COMPENSATION  AND  INSURANCE.        76 

§  51.  Remedies  proposed — German  and  English 
plans. — The  German  plan  of  insurance  against  accidents 
had  paid  out  $802,000,000  during  the  last  20  years  end- 
ing in  1904.  Of  this  total  sum  $555,750,000  was  paid  on 
account  of  sick  insurance,  $232,750,000  on  account  of 
accidents,  and  $13,500,000  on  account  of  invalidism  and 
old  age. 

To  the  fund  necessary  to  make  these  payments  the 
employer  contributed  $424,500,000.  The  employes  con- 
tributed $377,000,000  and  the  Imperial  Government  paid 
a  portion  of  the  cost  of  administration  and  a  small  por- 
tion of  the  funds  necessary  to  take  care  of  invalidism  and 
old  age  (50  marks  in  each  case  insured). 

The  general  rules  are,  in  respect  to  the  raising  of 
the  insurance  fund,  that  the  employes  should  pay  two- 
thirds  of  the  fund  necessary  to  take  care  of  sick  insur- 
ance, which  lasts  for  13  weeks,  and  the  employers  pay 
one-third.  In  the  case  of  accident  insurance  the  em- 
ployers pay  about  85  per  cent,  and  the  employes  15  per 
cent.  In  the  case  of  invalidism  and  old-age  insurance 
the  Imperial  Government  pays  $12.50  for  each  person 
insured,  and  the  remainder  of  the  fund  is  paid  half  and 
half  by  the  employers  and  employes. 

The  German  plan  in  1907  had  27,172,000  working- 
men  insured  against  sickness,  accidents,  and  old  age  out 
of  a  population  of  62,000,000  people. 

Now,  briefly,  the  English  plan,  which  in  1908  had 
13,000,000  workingmen  insured,  is  the  following: 

In  case  of  death,  the  compensation  paid  is  at  most 
three  years'  wages,  at  £300,  or  $1,460,  with  a  minimum 
payment  of  three  years'  wages  at  £150,  or  $730.  In 
case  of  disability  which  lasts  longer  than  one  week  the 
compensation  paid  is  one-half  week's  average  wage,  not 
to  exceed  $4.87,  as  long  as  the  disability  lasts.  Respon- 
sibility for  the  payment  of  the  compensation  rests  sole- 
ly on  the  employers,  and  they  are  not  required  to  insure. 


77  ECONOMIC  BASIS.  §  51 

In  both  the  German  and  English  plans  the  rules  of  con- 
tributory negligence,  assumption  of  risk,  and  the  fellow- 
servant  rules  are  abolished,  and  the  only  kind  of  negli- 
gence recognized  is  that  of  malicious  negligence  on  the 
part  of  the  employer  or  employe. 

Now,  the  common  law  does  not  presume  to  furnish 
.a  plan  of  relief  except  where  it  can  be  proven  that  the 
defendant  is  at  fault;  therefore  the  common  law  does 
not  presume  to  furnish  any  relief  for  something  like  80 
per  cent  of  all  workingmen  injured  and  killed  in  the 
United  States,  and  the  lowest  estimate  of  the  number 
of  persons  injured  and  killed  in  the  industrial  accidents 
in  1909  is  536,000  people. 

In  the  battle  of  Gettysburg,  which  lasted  three  days 
in  actual  righting,  there  were  killed  and  wounded  and 
missing  43,500  soldiers,  and  if,  therefore,  you  were  to 
have  a  battle  of  Gettysburg  in  one  of  each  of  12  divi- 
sions of  the  United  States,  one  in  one  month,  say,  in  the 
neighborhood  of  Boston,  and  the  next  month  in  the 
neighborhood  of  New  York  City,  a  third  at  Washington, 
a  fourth  at  New  Orleans,  a  fifth  at  Cincinnati,  one  at 
Pittsburgh,  a  seventh  at  Chicago,  one  at  St.  Louis,  one 
in  Minneapolis,  one  in  Denver,  one  at  Portland,  Ore., 
and  wind  up  at  the  end  of  the  year  at  San  Francisco, 
you  would  not  create  quite  the  damage  and  destruction 
which  takes  place  in  the  conduct  of  our  industries  for 
one  year;  yet  the  common  law  does  not  pretend  to  fur- 
nish any  relief  or  remedy,  except  in  those  cases  in  which 
the  employer  is  negligent,  and  the  best  figures  indicate 
that  it  does  not  exceed  20  per  cent  of  all  injuries,  and 
even  the  part  of  that  relief  which  reaches  the  employes 
is  less  than  one-fifth  of  what  the  employers  pay  out  to 
protect  themselves  against  the  liability  arising  out  of 
injuries  to  workingmen  in  industrial  accidents. 


§  52       WORKMEN'S  COMPENSATION  AND  INSURANCE.        78 

§  52.  Specific  provision  against  the  economic  in- 
security of  workingmen  in  the  United  States. — Legisla- 
tive agents  and  those  best  informed  on  the  subject  of 
compensating  the  workingmen  injured  in  the  due  course 
of  their  employment  agree  that  the  most  just  and  effi- 
cient remedy  is  that  known  as  industrial  insurance  along 
the  lines  of  the  German  plan,  or  a  workman's  compensa- 
tion act  along  the  lines  of  the  British  act. 

Perhaps  the  most  concrete  illustration  of  the  adap- 
tation of  the  German  plan  of  industrial  insurance  to  the 
compensation  of  injured  workmen  now  in  operation  in 
the  United  States  is  the  Ohio  workman's  compensation 
act.  The  following  statistical  data  is  taken  from  the 
report  of  the  experts  for  the  Ohio  commission  which 
was  prepared  by  Emile  E.  Watson,  investigator  in 
chief.35  The  facts  and  the  Ohio  law  are  fairly  typical 
of  the  conditions  and  the  proposed  remedies  in  respect 
to  industrial  insurance  as  they  exist  today  in  the  United 
States.  They  are  of  the  highest  scientific  importance. 
The  results  are  briefly  summarized  in  the  following 
paragraphs  :36 

1.  (a)     Under  the  old  system  the  Ohio  workman 
who  was  killed  while  at  his  employment  got  an  average 
settlement  of  $958X36^100,  or  $344.88. 

(b)  Under  the  new  workmen's  compensation  plan 
he  will  receive  an  average  settlement  of  $2,444. 

2.  (a)     Under  the  former  system  the  widow  and 
the  children  of  the  injured  are  obliged  to  pay  24  per 
cent  of  this  $344.88  to  lawyers  and  to  the  courts,  (b) 
Under  the  workmen's  compensation  plan  they  will  re- 
ceive all  the  $2,444,  not  having  to  pay  a  penny  for  at- 
torney or  court  costs. 

3.  (a)     Under  the  old  system  only  36  per  cent  of 

35  Report  of  the  Employers'  Liability  Commission  of  Ohio,  Pt.  I, 
p.  XXXV. 

se  See  tables  in  §§  41-45. 


79  ECONOMIC  BASIS.  §  52 

those  workingmen  who  were  killed  while  at  their  work 
received  anything  at  all,  leaving  64  per  cent  absolutely 
without  compensation,  (b)  Under  the  workmen's  com- 
pensation plan  every  workingman  killed,  not  by  his  own 
wilful  carelessness,  or  in  other  words,  by  suicide,  will  re- 
ceive full  compensation,  meaning  that  from  80  to  95 
per  cent  are  to  receive  compensation. 

4.  (a)     Under  the  old  system,  of  this  36  per  cent 
who  actually  received  anything  at  all  60  per  cent  got 
somewhere  between  $50  and  $500,  and  12  per  cent  of 
those  injured  got  more  than  50  per  cent  of  the  total 
amount  that  was  paid  out  for  injuries,  (b)  Under  the 
new  system  not  only  will  the  80  to  95  per  cent  receive  on 
an  average  of  $2,444  each,  but  the  difference  in  wages ; 
for  instance,  where  the  workman  receives  a  wage  of  $2  a 
day  and  is  killed,  his  widow  and  children  will  receive  a 
compensation  of  $2,444,  whereas  the  widow  and  children 
of  the  workman  who  receives  $3  a  day  will  get  $3,400. 

5.  (a)     Under  the  old  system,  where  the  workman 
was  killed  the  widow  and  children  of  the  36  per  cent  who 
got  anything  at  all  had  to  wait  from  one  to  five  years 
before  they  got  it,  in  which  period  the  widow  buried 
her    husband,    the    wages    of    the    husband    stopped 
coming  in   on  Saturday  night,   and  the   mother  was 
forced  from  her  home  to  the  washtub,  or  the  scrub  rag, 
and  part  of  the  children  were  taken  from  school  to  live 
a  life  of  slavery  and  drudgery;    they  were  forced  to 
live  in  hovels  because  rent  was  cheap  there,  and  in  this 
way  tuberculosis  and  other  diseases  were  contracted, 
(b)  Under  the  workmen's  compensation  plan  there  is 
no  delay  whatever — the  $2,444  (the  average  compensa- 
tion received)  being  paid  at  once.    As  a  rule  this  amount 
is  not  to  be  paid  in  a  lump  sum,  but  in  the  same  manner 
as  the  husband  received  his  regular  weekly  wage.     In 
this  way  the  widow  will  not  be  forced  to  lower  the  stand- 
ard of  living  for  herself  and  her  children,  and  she  will  be 


I  52       WORKMEN'S  COMPENSATION  AND  INSURANCE.        80 

shielded  from  the  washtub  and  the  scrub  rag  and  be 
enabled  to  keep  her  children  in  school  until  she  has  edu- 
cated them. 

6.  (a)  The  old  system  results  in  56  per  cent  of 
the  widows  and  18  per  cent  of  the  children  of  the  in- 
jured workman  going  to  work  in  order  to  earn  a  liveli- 
hood, because  of  the  great  mass  who  receive  nothing 
and  because  of  the  court  delay  and  costs  involved  to 
those  who  actually  do  receive  something,  (b)  The  work- 
men's compensation  plan  will  result  in  not  more  than 
10  per  cent  of  the  mothers  and  4  per  cent  of  the  children 
going  to  work  as  a  result  of  the  death  of  the  bread- 
winner, because  there  will  be  from  80  to  95  per  cent  who 
will  receive  compensation  of  a  uniform  nature — an  aver- 
age compensation  of  $2,444 — without  any  costs  and 
without  any  delay  in  securing  the  same. 

Every  employer  covered  by  the  act,  who  fails  to 
come  under  this  workmen's  compensation  plan  is  denied 
the  protection  of  the  fellow-servant,  contributory  negli- 
gence, and  assumed  risk  doctrines. 

The  employe  who  is  working  under  an  employer 
who  has  come  under  the  compensation  plan  is  required 
to  accept  terms  of  settlement  as  prescribed  by  the  com- 
pensation plan. 

The  State  is  made  custodian  of  a  fund  which  is 
created  for  the  purpose  of  taking  care  of  all  claims 
which  arise  under  the  workmen's  compensation  plan. 
The  employer  contributes  ninety  and  the  employe  ten 
per  cent,  of  this  fund. 

§  53.  Argument  for  joint  contribution  by  employer 
and  employe. — The  argument  for  making  both  employer 
and  employe  a  party  to  this  fund  is  that  both  parties 
may  stand  in  vital  relation  to  it,  every  employer  will 
take  it  as  his  business  to  force  the  careless  employer  to 
most  carefully  protect  his  men  because  to  the  extent 


8l  ECONOMIC  BASIS.  §  53 

that  accidents  are  increased  or  diminished  his  premium 
is  increased  or  diminished;  likewise  the  employe,  being 
a  party  to  this  fund,  makes  it  his  business  to  whip  his 
fellow-workingmen  into  exercising  care,  because  to  the 
degree  that  the  workingman  is  careless  his  premium  is 
increased. 

Broadly  speaking,  the  end  sought  to  be  attained  by 
all  constitutions,  statutes  and  court  decisions  is  the 
correction  of  economic  inequalities  which  arise  during 
the  process  of  the  evolution  of  organized  society.37 

37  That  these  new  remedies  do  no  violence  to  existing  constitu- 
tions is  well  shown  by  Mr.  Justice  Marshall  in  his  concurring  opin- 
ion in  the  case  of  Borgnis  v.  Falk  Co.,  147  Wisconsin  327,  133  N.  W. 
224-5,  which  sustained  the  constitutionality  of  the  Wisconsin  act.  He 
says: 

"So,  in  short,  I  think  the  law  in  question  is  a  reasonably  appro- 
priate means  to  effect  a  constitutional  purpose ;  that  the  Constitution 
needs  no  bending  whatever  in  order  to  sustain  it  in  its  essential 
features,  and  none  would  be  proper  if  the  contrary  were  the  case. 

"The  foregoing  I  can  but  regard  out  of  harmony  with  this,  in  its 
letter :  'Changed  social,  economic  and  governmental  conditions  and 
ideals  of  the  time,  as  well  as  the  problems  the  changes  have  produced, 
must  largely  enter  into  the  consideration  and  become  influential  fac- 
tors in  the  settlement  of  problems  of  construction  and  interpreta- 
tion'— so  far  as  it  is  pregnant  with  the  thought  that  the  fundamental 
law  is  judicially  changeable.  The  words  'problems'  of  'construction' 
and  'interpretation'  I  think  were  unfortunately  used,  if  the  thought 
was  merely  of  problems  of  whether  new  enactments  to  cope  with 
new  conditions  are  within  or  without  the  legitimate  field  of  legislative 
activity,  having  regard  to  appropriateness  of  means  to  effect  a  con- 
stitutional end.  The  latter  might  be,  as  I  have  suggested,  at  one 
time  and  not  a  half  century  theretofore,  because  changed  conditions 
may  render  an  end  legitimate,  within  the  unchangeable  scope  of  the 
fundamental  law,  which  earlier  was  not,  or  the  selected  means  to 
effect  that  end  might  be  reasonably  appropriate  at  one  time,  though 
not  so  a  century,  more  or  less,  theretofore.  *  *  * 

"True,  the  old  remedies  for  losses  mentioned  have  been  inefficient 
and  wasteful.  They  are,  economically  speaking,  unscientific  and  have 
always  been.  It  is  more  apparent  now  than  formerly  by  reason  of 
greater  and  more  numerous  modern  activities  and  methods,  that  is 
all.  In  truth,  the  infirmity  from  an  economic  standpoint,  and  from 
the  standpoint  of  man's  duty  to  his  fellowmen,  has  always  existed, 
though  the  quantum  of  regrettable  results  and  useless  waste  has 
g— BOYD  w  c 


§  53       WORKMEN'S  COMPENSATION  AND  INSURANCE.        82 

greatly   Increased  by  the  multiplication   of  human   activities  and 
physical  instrumentalities. 

"So  it  will  be  seen,  I  think,  that  while  particular  means  may  be 
reasonably  appropriate  to  a  legitimate  purpose  under  some  condi- 
tions characterizing  a  particular  period,  and  not  have  been  at  a 
prior  time,  no  change  In  the  Constitution  is  involved  in  remedying 
the  misfit.  The  end  being  proper  the  legitimacy  of  means  may  be 
dependable  upon  conditions,  the  question  turning  more  on  matter  of 
fact  than  anything  else.  The  change  of  mere  means  does  not  require 
a  fundamental  change,  so  long  as  legitimacy  of  end  and  reasonable 
appropriateness  of  means  shall  be  kept  efficiently  In  view." 


CHAPTER  VI. 

THE  NEW  YORK  WORKMEN'S  COMPENSATION  ACT. 

Sec.  Sec. 

54.  New    York    law    first    con-  58.  Argument    for    constltution- 
strued.  ality  of  act. 

55.  Nature  and  scope  of  the  New  59.  Reasons  for  upholding  view 
York  act.  of  court. 

56.  Text     of     the     New     York  59a.  New  York  General  Liability 
statute — Labor  Law  art.  14a.  Law  with  compensation  fea- 

57.  Construction  of  the  law  by  tures. 
the  Court  of  Appeals. 

§  54.  New  York  law  first  construed. — The  New 
York  law  is  the  first  of  the  compensation  laws  to  receive 
a  construction  by  a  court  of  last  resort  in  this  country.1 
The  Montana  law  was  first  enacted,  but  its  construction 
by  the  supreme  court  of  that  state  was  not  announced 
until  after  the  court  of  appeals  of  New  York  had  spoken. 

§  55.  Nature  and  scope  of  the  New  York  act. — This 
statute  made  it  compulsory  on  the  part  of  the  employer 
to  pay  the  prescribed  compensations  to  all  workmen  who 
should  receive  injuries  while  in  tW  due  course  of  their 
employment  in  any  of  eight  specified  hazardous  occupa- 
tions. But  the  employes  engaged  in  these  occupations 
were  given  the  option  of  accepting  the  limited  and  classi- 
fied compensations  provided  or  to  sue  at  law  as  they 
might  have  done  prior  to  the  passage  of  the  act.  The 
law  recognizes  no  negligence  on  the  part  of  the  em- 
ployes accepting  such  as  is  due  to  "the  serious  and  wilful 
misconduct  of  the  workmen."  It  was  passed  by  the 
Legislature  in  1910  and  declared  unconstitutional  by  the 
court  of  appeals  on  March  24th,  191 1.2 

1  Ives  v.  South  Buffalo  Railway  Co.,  201  N.  Y.  271,  94  N.  E.  431,  34 
L.  R.  A.  (N.  S.)  161  n. 

2  Ives  v.  South  Buffalo  Railway  Co.,  201  N.  Y.  271,  94  N.  E.  431, 
34L.R.  A.  (N.  S.)  162  n. 


§  56       WORKMEN'S  COMPENSATION  AND  INSURANCE.        84 

§  56.  Text  of  the  New  York  statute — Labor  Law 
article  14a. 

Section  215.  Application  of  article. — This  article 
shall  apply  only  to  workmen  engaged  in  manual  or  me- 
chanical labor  in  the  following  employments,  each  of 
which  is  hereby  determined  to  be  especially  dangerous, 
in  which  from  the  nature,  conditions  or  means  of  prose- 
cution of  the  work  therein,  extraordinary  risks  to  the  life 
and  limb  of  workmen  engaged  therein  are  inherent,  nec- 
essary or  substantially  unavoidable,  and  as  to  each  of 
which  employments  it  is  deemed  necessary  to  establish 
a  new  system  of  compensation  for  accidents  to  workmen. 

1.  The  erection   or   demolition   of   any   bridge    or 
building  in  which  there  is,  or  in  which  the  plans  and 
specifications  require,  iron  or  steel  framework. 

2.  The  operation  of  elevators,  elevating  machines 
or  derricks  or  hoisting  apparatus  used  within  or  on  the 
outside  of  any  bridge  or  building  for  the  conveying  of 
materials  in  connection  with  the  erection  or  demolition 
of  such  bridge  or  building. 

3.  Work  on  scaffolds  of  any  kind  elevated  twenty 
feet  or  more  above  the  ground,  water,  or  floor  beneath 
in  the  erection,  construction,  painting,  alteration  or  re- 
pair of  building,  bridges  or  structures. 

4.  Construction,  operation,  alteration  or  repair  of 
wires,  cables,  switchboards  or  apparatus  charged  with 
electric  currents. 

5.  All  work  necessitating  dangerous  proximity  to 
gunpowder,  blasting  powder,  dynamite  or  any  other  ex- 
plosives, where  the  same  are  used  as  instrumentalities  of 
the  industry. 

6.  The  operation  on  steam  railroads  of  locomotives, 
engines,  trains,  motors  or  cars  propelled  by  gravity  or 
steam,  electricity  or  other  mechanical  power,  or  the  con- 
struction or  repair  of  steam  railroad  tracks  and  road 
beds  over  which  such  locomotives,  engines,  trains,  mo- 
tors or  cars  are  operated. 


85  NEW  YORK  ACT.  •  §  56 

7.  The  construction  of  tunnels  and  subways. 

8.  All  work  carried  on  under  compressed  air. 
Section  216.     Definitions — The  words,  "employer," 

"workman"  and  "employment,"  or  their  plurals,  used  in 
this  article,  shall  be  construed  to  apply  to  all  the  em- 
ployments above  described. 

Section  217.  Basis  of  liability. — If,  in  the  course  of 
any  of  the  employments  above  described,  personal  in- 
jury by  accident  arising  out  of  and  in  the  course  of  the 
employment  after  this  article  takes  effect  is  caused  to 
any  workman  employed  therein,  in  whole  or  in  part,  or 
the  damage  or  injury  caused  thereby  is  in  whole  or  in 
part  contributed  to  by 

a.  A  necessary  risk  or  danger  of  the  employment  or 
one  inherent  in  the  nature  thereof;  or 

b.  Failure  of  the  employer  of  such  workmen  or  any 
of  his  or  its  officers,  agents  or  employes  to  exercise  due 
care,  or  to  comply  with  any  law  affecting  such  employ- 
ment; then  such  employer  shall,  subject  as  hereinafter 
mentioned,  be  liable  to  pay  compensation  at  the  rates 
set  out  in  section  two  hundred  and  nineteen-a  of  this 
title;  provided  that  the  employer  shall  not  be  liable  in 
respect  of  any  injury  which  does  not  disable  the  work- 
man for  a  period  of  at  least  two  weeks  from  earning  full 
wages  at  the  work  at  which  he  was  employed,  and  pro- 
vided that  the  employer  shall  not  be  liable  in  respect  of 
any  injury  to  the  workman  which  is  caused  in  whole  or 
in  part  by  the  serious  and  wilful  misconduct  of  the  work- 
man. 

Section  218..  Rights  of  action  not  affected. — The 
right  of  action  for  damages  caused  by  any  such  injury, 
at  common  law  or  under  any  statute  in  force  on  January 
one,  nineteen  hundred  and  ten,  shall  not  be  affected  by 
this  article,  and  every  existing  right  of  action  for  negli- 
gence or  to  recover  damages  for  injuries  resulting  in 
death  is  continued,  and  nothing  in  this  article  shall  be 


§  56       WORKMEN'S  COMPENSATION  AND  INSURANCE.        86 

construed  as  limiting  such  right  of  action,  but  in  case 
the  injured  workman,  or  in  event  of  his  death  his  execu- 
tor or  administrator,  shall  avail  himself  of  this  article, 
either  by  accepting  any  compensation  hereunder  in 
accordance  with  section  two  hundred  and  nineteen-a 
hereof,  or  by  beginning  proceedings  therefor  in  any 
manner  on  account  of  any  such  injury,  he  shall  be  barred 
from  recovery  in  and  deemed  thereby  to  have  released 
every  other  action  at  common  law  or  under  any  other 
statute  on  account  of  the  same  injury  after  this  article 
takes  effect.  In  case  after  such  injury  the  workman,  or 
in  the  event  of  his  death  his  executor  or  administrator, 
shall  commence  any  action  at  common  law  or  under  any 
statute  other  than  this  article  against  the  employer 
therefor  he  shall  be  barred  from  all  benefit  of  this  arti- 
cle in  regard  thereto. 

Section  219.  Notice  of  accident. — No  proceedings 
for  compensation  under  this  article  shall  be  maintained 
unless  notice  of  the  accident  as  hereinafter  provided  has 
been  given  to  the  employer  as  soon  as  practicable  after 
the  happening  thereof  and  before  the  workman  has  vol- 
untarily left  the  employment  in  which  he  was  injured, 
and  during  such  disability,  but  no  want  or  defect  or  in- 
accuracy of  a  notice  shall  be  a  bar  to  the  maintenance 
of  proceedings  unless  the  employer  proves  that  he  is 
prejudiced  by  such  want,  defect  or  inaccuracy.  Notice 
of  the  accident  shall  state  the  name  and  address  of  the 
workman  injured,  the  date  and  place  of  the  accident,  and 
in  simple  language  the  physical  cause  thereof,  if  known. 
The  notice  may  be  served  personally  or  by  sending  it 
by  mail  in  a  registered  letter  addressed  to  the  employer 
at  his  last  known  residence  or  place  of  business. 

Section  219-a.  Scale  of  compensation. — The  amount 
of  compensation  shall  be  in  case  death  results  from  in- 
jury: 

a.     If  the  workman  leaves  a  widow  or  next  of  kin  at 


8/  NEW  YORK  ACT.  §  56 

the  time  of  his  death  wholly  dependent  on  his  earnings, 
a  sum  equal  to  twelve  hundred  times  the  daily  earnings 
of  such  workman  at  the  rate  at  which  he  was  being  paid 
by  such  employer  at  the  time  of  the  injury  subject  as 
hereinafter  provided,  and  in  no  event  more  than  three 
thousand  dollars.  Any  weekly  payments  made  under 
this  article  shall  be  deducted  in  ascertaining  such 
amount. 

b.  If  such  widow  or  next  of  kin  at  the  time  of  his 
death  are  in  part  only  dependent  upon  his  earnings, 
such  proportionate  sum  not  exceeding  that  provided  in 
subdivision  a  as  may  be  determined  according  to  the  in- 
jury to  such  dependents. 

c.  If  he  leaves  no  dependents,  the  reasonable  ex- 
penses of  his  medical  attendance  and  burial,  not  exceed- 
ing one  hundred  dollars. 

Whatever  sum  may  be  determined  to  be  payable 
under  this  article  in  case  of  death  of  the  injured  work- 
man shall  be  paid  to  his  legal  representative  for  the 
benefit  of  such  dependents,  or  if  he  leaves  no  such  de- 
pendents, for  the  benefit  of  the  persons  to  whom  the  ex- 
penses of  medical  attendance  and  burial  are  due. 

2.  Where  total  or  partial  incapacity  for  work  at  any 
gainful  employment  results  to  the  workman  from  the 
injury,  a  weekly  payment  commencing  at  the  end  of  the 
second  week  after  the  injury  and  continuing  during  such 
incapacity,  subject  as  herein  provided,  equal  to  fifty  per 
centum  of  his  average  weekly  earnings  when  at  work 
on  full  time  during  the  preceding  year  during  which  he 
shall  have  been  in  the  employment  of  the  same  em- 
ployer, or  if  he  shall  have  been  in  the  employment  of  the 
same  employer  for  less  than  a  year,  then  a  weekly  pay- 
ment of  not  exceeding  three  times  the  average  daily 
earnings  on  full  time  for  such  less  period.  In  fixing  the 
amount  of  the  weekly  payment,  regard  shall  be  had  to 
the  difference  between  the  amount  of  the  average  earn- 


§  56       WORKMEN'S  COMPENSATION  AND  INSURANCE.        88 

ings  of  the  workman  before  the  accident  and  the  aver- 
age amount  he  is  able  to  earn  thereafter  as  wages  in  the 
same  employment  or  otherwise.  In  fixing  the  amount 
of  the  weekly  payment,  regard  shall  be  had  to  any  pay- 
ment, allowance  or  benefit  which  the  workman  may 
have  received  from  the  employer  during  the  period  of 
his  incapacity,  and  in  the  case  of  partial  incapacity  the 
weekly  payment  shall  in  no  case  exceed  the  difference 
between  the  amount  of  the  average  weekly  earnings  of 
the  workman  before  the  accident  and  the  average  weekly 
amount  which  he  is  earning  or  is  able  to  earn  in  the  same 
employment  or  otherwise  after  the  accident,  but  shall 
amount  to  one-half  of  such  difference.  In  no  event  shall 
any  compensation  paid  under  this  article  exceed  the 
damage  suffered,  nor  shall  any  weekly  payment  paya- 
ble under  this  article  in  any  event  exceed  ten  dollars  a 
week  or  extend  over  more  than  eight  years  from  the 
date  of  the  accident. 

Section  219b.  Medical  examinations. — Any  work- 
man entitled  to  receive  weekly  payments  under  this 
article  is  required,  if  requested  by  the  employer,  to  sub- 
mit himself  for  examination  by  a  duly  qualified  medical 
practitioner  or  surgeon  provided  and  paid  for  by  the  em- 
ployer, at  a  time  and  place  reasonably  convenient  for 
the  workman,  within  three  weeks  after  the  injury,  and 
thereafter  at  intervals  not  oftener  than  once  in  six 
weeks.  If  the  workman  refuses  to  submit  to  such  ex- 
amination, or  obstructs  the  same,  his  right  to  weekly 
payments  shall  be  suspended  until  such  examination  has 
taken  place,  and  no  compensation  shall  be  payable  dur- 
ing or  for  account  of  such  period. 

Section  219c.  Incompetency  of  workman. — In  case 
an  injured  workman  shall  be  mentally  incompetent  at 
the  time  when  any  right  or  privilege  accrues  to  him  un- 
der this  article,  a  committee  or  guardian  of  the  incom- 
petent appointed  pursuant  to  law  may,  on  behalf  of  such 


89  NEW  YORK  ACT.  §  56 

incompetent,  claim  and  exercise  any  such  right  or  pri- 
vilege with  the  same  force  and  effect  as  if  the  workman 
himself  had  been  competent  and  had  claimed  or  exer- 
cised any  such  right  or  privilege;  and  no  limitation  of 
time  in  this  article  provided  for  shall  run  so  long  as  said 
incompetent  workman  has  no  committee  or  guardian. 

Section  219d.  Settlement  of  disputes. — Any  ques- 
tion which  may  arise  under  this  act  shall  be  determined 
either  by  agreement  or  by  arbitration  as  provided  in  the 
Code  of  Civil  Procedure  or  by  an  action  at  law  as  herein 
provided.  In  case  the  employer  fails  to  make  compensa- 
tion as  herein  provided,  the  injured  workman,  or  his 
committee  or  guardian,  if  such  be  appointed,  or  his  exe- 
cutor or  administrator,  may  then  bring  an  action  to  re- 
cover compensation  under  this  article  in  any  court  hav- 
ing jurisdiction  thereof,  or  in  any  court  which  would 
have  had  jurisdiction  of  an  action  for  recovery 
of  damages  for  negligence  for  the  same  injury  between 
the  same  parties.  This  article,  however,  shall  not  be 
construed  as  extending  the  jurisdiction  of  any  such 
court  to  award  judgment  for  an  amount  greater  than 
now  allowed  by  law.  Such  action  shall  be  conducted  in 
the  same  manner  as  actions  at  law  for  the  recovery  of 
damages  for  negligence.  The  judgment  in  such  action 
if  in  favor  of  the  plaintiff  shall  be  for  a  sum  equal  to  the 
amount  of  payments  then  due  and  prospectively  due 
under  this  article.  Such  action  must  be  commenced 
within  six  months  after  the  happening  of  the  accident 
or  in  case  of  the  death  of  the  workman  by  such  accident 
within  six  months  after  the  appointment  of  his  legal 
representative  in  this  state,  or  in  the  event  of  his  physi- 
cal incapacity,  within  six  months  after  the  removal 
thereof,  or  in  the  event  of  weekly  payments  by  the  em- 
ployer hereunder,  within  six  months  after  such  pay- 
ments have  ceased.  In  such  action  by  an  executor  or 
administrator  the  judgment  may  provide  the  proper- 


§  56       WORKMEN'S  COMPENSATION  AND  INSURANCE.        90 

tions  of  the  award  or  the  costs  to  be  distributed  to  or 
between  the  several  dependents.  If  such  determination 
is  not  made  it  shall  be  determined  by  the  surrogate's 
court,  in  which  such  executor  or  administrator  is  ap- 
pointed, in  accordance  with  this  article,  on  petition  of 
any  party  interested  on  such  notice  as  such  court  may 
direct. 

Section  219-e.  Preferences  and  exemptions. — Any 
person  entitled  to  weekly  payments  under  this  article 
against  any  employer  shall  have  the  same  preferential 
claim  therefor  against  the  assets  of  the  employer  as  al- 
lowed by  law  for  a  claim  by  such  person  against  such 
employer  for  unpaid  wages  or  personal  services.  Weekly 
payments  due  under  this  article  shall  not  be  assignable 
or  subject  to  levy,  execution  or  attachment. 

Section  219-f.  Attorneys'  liens. — No  claim  of  an 
attorney  at  law  for  any  contingent  interest  in  any  re- 
covery under  this  article  for  services  in  securing  such 
recovery  or  for  disbursements  shall  be  an  enforceable 
lien  on  such  recovery,  unless  the  amount  of  the  same  be 
approved  in  writing  by  a  justice  of  the  Supreme  Court, 
or  in  case  the  same  be  tried  in  any  court,  by  the  justice 
presiding  at  such  trial. 

Section  219-g.  Liability  of  principal  contractors. — 
If  an  employer  who  shall  be  the  principal  enters  into  a 
contract  with  an  independent  contractor  to  do  part  of 
such  employer's  work,  or  if  such  contractor  enters  into 
a  contract  with  a  sub-contractor  to  do  all  or  any  part  of 
the  work  comprised  in  such  contractor's  contract  with 
the  employer,  the  said  principal  shall  be  liable  to  pay 
to  any  workman  employed  in  the  execution  of  the 
work  any  compensation  under  this  article  which  he 
would  have  been  liable  to  pay  if  that  workman  had  been 
immediately  employed  by  him;  and  where  compensa- 
tion is  claimed  from  or  proceedings  are  taken  against 
the  principal  then,  in  the  application  of  this  article,  ref- 


91  NEW  YORK  ACT.  §  57 

ferences  to  the  principal  shall  be  substituted  for  ref- 
erences to  the  employer,  except  that  the  amount  of 
compensation  shall  be  calculated  with  reference  to  the 
earnings  of  the  workman  under  the  contractor  or  em- 
ployer by  whom  he  is  immediately  employed.  Where 
.such  principal  is  liable  to  pay  compensation  he  shall  be 
•entitled  to  be  indemnified  by  any  person  who  would 
have  been  liable  to  pay  compensation  to  the  workman 
independently  of  this  section.  Nothing  in  this  section 
.-shall  be  construed  as  preventing  a  workman  from  re- 
covering compensation  under  this  article  from  the  con- 
tractor or  sub-contractor,  instead  of  the  principal;  nor 
.•shall  this  section  apply  in  any  case  where  the  accident 
shall  occur  elsewhere  than  on,  or  in,  or  about  the  prem- 
ises on  which  the  principal  has  undertaken  to  execute 
the  work  or  which  are  otherwise  under  his  control  or 
management. 

§  57.  Construction  of  the  law  by  the  Court  of  Ap- 
peals.— The  statute  was  declared  unconstitutional  by 
the  Court  of  Appeals  in  the  case,  Ives  v.  South  Buffalo 
Railway  Company.3  This  case  came  to  the  court  on 
appeal  from  a  judgment  of  the  Appellate  Division  of  the 
'Supreme  Court,  in  the  fourth  department,  which  af- 
firmed a  final  judgment  in  favor  of  the  plaintiff  entered 
upon  a  decision  at  Special  Term  sustaining  a  demurrer 
to  the  defenses  pleaded  in  the  answer. 

The  complaint  alleges,  in  substance,  that  on  the  sec- 
ond day  of  April,  1910,  while  the  plaintiff  was  engaged 
in  his  work  as  a  switchman  on  defendant's  steam  rail- 
road, he  was  injured  solely  by  reason  of  a  necessary 
risk  or  danger  of  his  employment;  that  at  the  time 
of  the  commencement  of  the  action  he  had  been  totally 
incapacitated  for  labor  for  a  period  of  three  weeks, 
and  that  such  incapacity  would  continue  for  four  weeks 

3201  N.  T.  271,  94  N.  E.  431,  34  L.  R.  A.  (N.  S.)  162  n. 


§  57       WORKMEN'S  COMPENSATION  AND  INSURANCE.        92 

longer  and  demands  judgment  for  compensation  in  ac- 
cordance with  the  provisions  of  said  act  for  a  period  of 
five  weeks.  The  answer,  after  admitting  all  the  allega- 
tions of  the  complaint,  pleaded  as  a  defense  the  uncon- 
stitutionality  of  article  14-a  of  the  Labor  Law,  upon  the 
ground  that  it  contravenes  certain  provisions  of  the 
Federal  and  State  Constitutions.  The  plaintiff  de- 
murred to  this  defense  on  the  ground  that  it  was  insuffi- 
cient in  law  upon  the  face  thereof.  The  issue  of  law 
thus  presented  was  tried  at  Special  Term,  where  the  de- 
murrer was  sustained.  Final  judgment  was  entered 
upon  this  decision,  and  the  defendant  appealed  to  the 
Appellate  Division,  where  the  judgment  was  affirmed 
by  a  divided  court. 

The  opinion  by  Mr.  Justice  Werner  is  as  fol- 
lows: In  1909  the  legislature  passed  a  law  (Ch.  518) 
providing  for  a  commission  of  fourteen  persons,  six  of 
whom  were  to  be  appointed  by  the  governor,  three  by 
the  president  of  the  senate  from  the  senate,  and  five  by 
the  speaker  of  the  assembly  from  the  assembly,  "to 
make  inquiry,  examination  and  investigation  into  the 
working  of  the  law  in  the  State  of  New  York  relative 
to  the  liability  of  employers  to  employes  for  industrial 
accidents,  and  into  the  comparative  efficiency,  cost,  jus- 
tice, merits  and  defects  of  the  laws  of  other  industrial 
states  and  countries,  relative  to  the  same  subject,  and 
as  to  the  causes  of  the  accidents  to  employes."  The  act 
contained  other  provisions  germane  to  the  subject  and 
provided  for  a  full  and  final  report  to  the  legislature  of 
1910,  if  practicable,  and  if  not  practicable,  then  to  the 
legislature  of  1911,  with  such  recommendations  for  leg- 
islation by  bill  or  otherwise  as  the  commission  might 
deem  wise  or  expedient.  Such  a  commission  was  ap- 
pointed and  promptly  organized  by  the  election  of  offi- 
cers and  the  appointment  of  sub-committees,  the  chair- 
man being  Senator  Wainwright,  from  whom  it  has  tak- 


93  NEW  YORK  ACT.      •  §  57 

en  the  name  of  the  "Wainwright  Commission,"  by  which 
it  is  popularly  known.  No  word  of  praise  could  overstate 
the  industry  and  intelligence  of  this  commission  in  deal- 
ing with  a  subject  of  such  manifold  ramifications  and  of 
such  far-reaching  importance  to  the  state,  to  employers 
and  to  employes.  We  cannot  dwell  in  detail  upon  the 
many  excellent  features  of  its  comprehensive  report, 
because  the  limitations  of  time  and  space  must  neces- 
sarily confine  us  to  such  of  its  aspects  as  have  a  neces- 
sary relation  to  the  legal  questions  which  we  are  called 
upon  to  decide.  As  the  result  of  its  labors  the  commis- 
sion recommended  for  adoption  the  bill  which,  with 
slight  changes,  was  enacted  into  law  by  the  legislature 
of  1910,  under  the  designation  of  article  14-a  of  the 
Labor  Law.  This  act  is  modeled  upon  the  English 
Workmen's  Compensation  Act  of  1897,  which  has  since 
been  extended  so  as  to  cover  every  kind  of  occupational 
injury.  Our  commission  has  frankly  stated  in  its  report 
that  the  classification  of  the  industries  which  will  be 
immediately  affected  by  the  present  statute  is  only  ten- 
tative, and  that  other  more  extended  classifications  will 
probably  be  recommended  to  the  legislature  for  its 
action. 

The  statute,  judged  by  our  common-law  standards, 
is  plainly  revolutionary.  Its  central  and  controlling  fea- 
ture is  that  every  employer  who  is  engaged  in  any  of 
the  classified  industries  shall  be  liable  for  any  injury  to 
a  workman  arising  out  of  and  in  the  course  of  the 
employment  by  "a  necessary  risk  or  danger  of  the  em- 
ployment or  one  inherent  in  the  nature  thereof;  *  *  * 
provided  that  the  employer  shall  not  be  liable  in  respect 
of  any  injury  to  the  workman  which  is  caused  in  whole 
or  in  part  by  the  serious  and  wilful  misconduct  of  the 
workman."  This  rule  of  liability,  stated  in  another 
form,  is  that  the  employer  is  responsible  to  the  em- 
ploye for  every  accident  in  the  course  of  the  employ- 


§  57          WORKMENis  COMPENSATION  AND  INSURANCE.  94 

ment,  whether  the  employer  is  at  fault  or  not,  and 
whether  the  employe  is  at  fault  or  not,  except  when  the 
fault  of  the  employe  is  so  grave  as  to  constitute  serious 
and  willful  misconduct  on  his  part.  The  radical  charac- 
ter of  this  legislation  is  at  once  revealed  by  contrasting 
it  with  the  rule  of  the  common  law,  under  which  the  em- 
ployer is  liable  for  injuries  to  his  employe  only  when  the 
employer  is  guilty  of  some  act  or  acts  of  negligence 
which  caused  the  occurrence  out  of  which  the  injuries 
arise,  and  then  only  when  the  employe  is  shown  to  be 
free  from  any  negligence  which  contributes  to  the  occur- 
rence. The  several  judicial  and  statutory  modifications 
of  this  broad  rule  of  the  common  law  we  shall  further 
on  have  occasion  to  mention.  Just  now  our  purpose  is- 
to  present  in  sharp  juxtaposition  the  fundamentals  of 
these  two  opposing  rules,  namely,  that  under  the  com- 
mon law  an  employer  is  liable  to  his  injured  employe- 
only  when  the  employer  is  at  fault  and  the  employe- 
is  free  from  fault;  while  under  the  new  statute  the  em- 
ployer is  liable,  although  not  at  fault,  even  when  the  em- 
ploye is  at  fault,  unless  this  latter  fault  amounts  to  seri- 
ous and  wilful  misconduct.  The  reasons  for  this  depart- 
ure from  our  long-established  law  and  usage  are  sum- 
marized in  the  language  of  the  commission  as  follows: 

"First,  that  the  present  system  in  New  York  rests- 
on  a  basis  that  is  economically  unwise  and  unfair,  and. 
that  in  operation  it  is  wasteful,  uncertain  and  productive 
of  antagonism  between  workmen  and  employers. 

"Second,  that  it  is  satisfactory  to  none  and  tolerable 
only  to  those  employers  and  workmen  who  practically 
disregard  their  legal  rights  and  obligations,  and  fairly 
share  the  burden  of  accidents  in  industries. 

"Third,  that  the  evils  of  the  system  are  most  marked 
in  hazardous  employments,  where  the  trade  risk  is  high 
and  serious  accidents  frequent. 

"Fourth,  that,  as  matter  of  fact,  workmen  in  the 


95  N£W  YORK  ACT.  §  57 

dangerous  trades  do  not,  and  practically  cannot,  provide 
for  themselves  adequate  accident  insurance,  and,  there- 
fore, the  burden  of  serious  accidents  falls  on  the  work- 
men least  able  to  bear  it,  and  brings  many  of  them  and 
their  families  to  want." 

This  indictment  of  the  old  system  is  followed  by  a 
statement  of  the  anticipated  benefits  under  the  new 
statute  as  follows:  "These  results  can,  we  think,  be 
best  avoided  by  compelling  the  employer  to  share  the 
accident  burden  in  intrinsically  dangerous  trades,  since 
by  fixing  the  price  of  his  product  the  shock  of  the  acci- 
dent may  be  borne  by  the  community.  In  those  em- 
ployments which  have  not  so  great  an  element  of  dan- 
ger, in  which,  speaking  generally,  there  is  no  such  im- 
perative demand  for  the  exercise  of  the  police  power  of 
the  state  for  the  safeguarding  of  its  workers  from  desti- 
tution and  its  consequences,  we  recommend,  as  the  first 
step  in  this  change  of  system,  such  amendment  of  the 
present  law  as  will  do  away  with  some  of  its  unfairness 
in  theory  and  practice,  and  increase  the  workman's 
chance  of  recovery  under  the  law.  With  such  changes 
in  the  law  we  couple  an  elective  plan  of  compensation 
which,  if  generally  adopted,  will  do  away  with  many  of 
the  evils  of  the  present  system.  Its  adoption  will,  we 
believe,  be  profitable  to  both  employer  and  employe,  and 
prove  to  be  the  simplest  way  for  the  State  to  change  its 
system  of  liability  without  disturbance  of  industrial  con- 
ditions. Not  the  least  of  the  motives  moving  us  is  the 
hope  that  by  these  means  a  source  of  antagonism  be- 
tween employer  and  employed,  pregnant  with  danger 
for  the  State,  may  be  eliminated." 

This  quoted  summary  of  the  report  of  the  commis- 
sion to  the  legislature,  which  clearly  and  fairly  epito- 
mizes what  is  more  fully  set  forth  in  the  body  of  the  re- 
port, is  based  upon  a  most  voluminous  array  of  statis- 
tical tables,  extracts  from  the  works  of  philosophical 


I  57       WORKMEN'S  COMPENSATION  AND  INSURANCE.        96 

writers  and  the  industrial  laws  of  many  countries,  all  of 
which  are  designed  to  show  that  our  own  system  of  deal- 
ing with  industrial  accidents  is  economically,  morally 
and  legally  unsound.  Under  our  form  of  government, 
however,  courts  must  'regard  all  economic,  philosophical 
and  moral  theories,  attractive  and  desirable  though  they 
may  be,  as  subordinate  to  the  primary  question  whether 
they  can  be  moulded  into  statutes  without  infringing 
upon  the  letter  or  spirit  of  our  written  constitutions.  In 
that  respect  we  are  unlike  any  of  the  countries  whose 
industrial  laws  are  referred  to  as  models  for  our  guid- 
ance. Practically  all  of  these  countries  are  so-called 
constitutional  monarchies  in  which,  as  in  England,  there 
is  no  written  constitution,  and- the  Parliament  or  law- 
making  body  is  supreme.  In  our  country  the  Federal 
and  State  Constitutions  are  the  charters  which  demark 
the  extent  and  the  limitations  of  legislative  power;  and 
while  it  is  true  that  the  rigidity  of  a  written  constitution 
may  at  times  prove  to  be  a  hindrance  to  the  march  of 
progress,  yet  more  often  its  stability  protects  the  people 
against  the  frequent  and  violent  fluctuations  of  that 
which,  for  want  of  a  better  name,  we  call  public  opinion. 
With  these  considerations  in  mind  we  turn  to  the 
purely  legal  phases  of  the  controversy  for  the  purpose 
of  disposing  of  some  things  which  are  incidental  to  the 
main  question.  The  new  statute,  as  we  have  observed, 
is  totally  at  variance  with  the  common-law  theory  of  the 
employer's  liability.  Fault  on  his  part  is  no  longer  an 
element  of  the  employe's  right  of  action.  This  change 
necessarily  and  logically  carries  with  it  the  abrogation 
of  the  "fellow-servant"  doctrine,  the  "contributory  negli- 
gence" rule,  and  the  law  relating  to  the  employe's  as- 
sumption of  risks.  There  can  be  no  doubt  that  the  first 
two  of  these  are  subjects  clearly  and  fully  within  the 
scope  of  the  legislative  power ;  and  that  as  to  the  third, 


97  NEW  YORK  ACT. 

this  power  is  limited  to  some  extent  by  constitutional 
provisions. 

The  "fellow-servant"  rule  is  one  of  judicial  origin 
engrafted  upon  the  common  law  for  the  protection  of 
the  master  against  the  consequences  of  negligence  in 
which  he  has  no  part.  In  its  early  application  to  simple 
industrial  conditions  it  had  the  support  of  both  reason 
and  justice.  By  degrees  it  was  extended  until  it  became 
evident  that  under  the  enormous  expansion  and  infinite 
complexity  of  our  modern  industrial  conditions  the  rule 
gave  opportunity,  in  many  instances,  for  harsh  and  tech- 
nical defenses.  In  recent  years  it  has  been  much  re- 
stricted in  its  application  to  large  corporate  and  indus- 
trial enterprises,  and  still  more  recently  it  has  been 
modified  and,  to  some  extent  abolished,  by  the  Labor 
Law  and  the  Employers'  Liability  Act. 

The  law  of  contributory  negligence  has  the  support 
of  reason  in  any  system  of  jurisprudence  in  which  the 
fault  of  one  is  the  basis  of  liability  for  injury  to  another. 
Under  such  a  system  it  is  at  least  logical  to  hold  that 
one  who  is  himself  to  blame  for  his  injuries  should  not 
be  permitted  to  entail  the  consequences  upon  another 
who  has  not  been  negligent  at  all,  or  whose  negligence 
would  not  have  caused  the  injury  if  the  one  injured  had 
been  free  from  fault.  It  may  be  admitted  that  the  rea- 
son of  the  rule  is  often  lost  sight  of  in  the  effort  to  ap- 
ply it  to  a  great  variety  of  practical  conditions,  and  that 
its  efficacy  as  a  rule  of  justice  is  much  impaired  by  the 
lack  of  uniformity  in  its  administration.  In  the  admir- 
alty branch  of  the  Federal  courts,  for  instance,  we  have 
what  is  known  as  the  rule  of  comparative  negligence 
under  which,  when  there  is  negligence  on  both  sides,  it 
is  apportioned  and  a  verdict  rendered  accordingly.  In 
many  of  the  states  contributory  negligence  is  a  defense 
which  must  be  pleaded  and  proved  by  the  defendant, 
and  in  some  states  it  has  been  entirely  abrogated  by 

7— BOYD  W  C 


§  57       WORKMEN'S  COMPENSATION  AND  INSURANCE.        98 

statute.  In  our  own  state  the  plaintiff's  freedom  from 
contributory  negligence  is  an  essential  part  of  his  cause 
of  action  which  must  be  affirmatively  established  by 
him,  except  in  cases  brought  by  employes  under  the 
Labor  Law,  by  virtue  of  which  the  contributory  negli- 
gence of  an  employe  is  now  made  a  defense  which  must 
be  pleaded  and  proved  by  the  employer;  and  under  the 
Employers'  Liability  Act  which  provides  that  the  em- 
ploye's continuance  in  his  employment  after  he  has 
knowledge  of  dangerous  conditions  from  which  injury 
may  ensue,  shall  not,  as  matter  of  law,  constitute  con- 
tributory negligence. 

Under  the  common  law  the  employe  was  also  held 
to  have  assumed  the  ordinary  and  obvious  risks  incident 
to  the  employment,  as  well  as  the  special  risks  arising 
out  of  dangerous  conditions  which  were  known  and  ap- 
preciated by  him.  This  doctrine,  too,  has  been  modified 
by  statute  so  that  under  the  Labor  Law  and  the  Em- 
ployers' Liability  Act  the  employe  is  presumed  to  have 
assented  to  the  necessary  risks  of  the  occupation  or  em- 
ployment and  no  others;  and  these  necessary  risks  are 
defined  as  those  only  which  are  inherent  in  the  nature 
of  the  business  and  exist  after  the  employer  has  exer- 
cised due  care  in  providing  for  the  safety  of  his  em- 
ployes, and  has  complied  with  the  laws  affecting  or  regu- 
lating the  business  or  occupation  for  the  greater  safety 
of  employes. 

We  have  said  enough  to  show  that  the  statutory 
modification  of  the  "fellow-servant"  rule  and  the  law  of 
"contributory  negligence"  are  clearly  within  the  legis- 
lative power.  These  doctrines,  for  they  are  nothing 
more,  may  be  regulated  or  even  abolished.  This  is  true 
to  a  limited  extent  as  to  the  assumption  of  risk  by  the 
employe.  In  the  Labor  Law  and  the  Employers'  Liabil- 
ity Act,  which  define  the  risks  assumed  by  the  employe, 
there  are  many  provisions  which  cast  upon  the  em- 


99  N£W  YORK  ACT.  §  57 

ployer  a  great  variety  of  duties  and  burdens  unknown 
to  the  common  law.  These  can  doubtless  be  still  fur- 
ther multiplied  and  extended  to  the  point  where  they 
deprive  the  employer  of  rights  guaranteed  to  him  by 
our  Constitutions,  and  there,  of  course,  they  must  stop, 
as  we  shall  endeavor  to  demonstrate  later  on. 

Passing  now  to  the  constitutional  objections  which 
are  presented  against  the  new  statute,  we  will  first  elim- 
inate those  which  we  regard  as  clearly  or  probably  un- 
tenable. The  appellant  argues  and  the  respondent  ad- 
mits that  the  new  statute  cannot  be  upheld  under  the 
reserved  power  of  the  legislature  to  alter  and  amend 
charters.  It  is  true  that  the  defendant  in  the  case  at  bar 
is  a  railroad  corporation,  but  the  act  applies  to  eight 
enumerated  occupations  or  industries  without  regard  to 
the  character  of  the  employers.  They  may  be  corpora- 
tions, firms  or  individuals.  Nowhere  in  the  act  is  there 
any  reference  to  corporations.  The  liability  sought  to 
be  imposed  is  based  upon  the  nature  of  the  employment 
and  not  upon  the  legal  status  of  the  employer.  It  is, 
therefore,  unnecessary  to  decide  how  far  corporate  lia- 
bility may  be  extended  under  the  reserved  power  to 
alter  or  amend  charters,  except  as  that  question  may  be 
incidentally  discussed  in  considering  the  police  power 
of  the  state. 

The  appellant  contends  that  the  classification  in  this 
statute,  of  a  limited  number  of  employments  as  danger- 
ous, is  fanciful  or  arbitrary,  and  is,  therefore,  repugnant 
to  that  part  of  the  fourteenth  amendment  to  the  Federal 
Constitution  which  guarantees  to  all  our  citizens  the 
equal  protection  of  the  laws.  Classification,  for  pur- 
poses of  taxation,  or  of  regulation  under  the  police 
power,  is  a  legislative  function  with  which  the  courts 
have  no  right  to  interfere  unless  it  is  so  clearly  arbitrary 
or  unreasonable  as  to  invade  some  constitutional  right. 
A  state  may  classify  persons  and  objects  for  the  purpose 


§  57       WORKMEN'S  COMPENSATION  AND  INSURANCE.      100 

of  legislation  provided  the  classification  is  based  on 
proper  and  justifiable  distinctions  (St.  John  v.  New 
York,  201  U.  S.  633,  26  Sup.  Ct.  554,  50  L.  ed.  896;  Mis- 
souri Pac.  Ry.  Co.  v.  Mackey,  127  U.  S.  205,  8  Sup.  Ct. 
1161,  32  L.  ed.  107;  Minneapolis  &  St.  L.  Ry.  Co.  v. 
Herrick,  127  U.  S.  210,  8  Sup.  Ct.  1176,  32  L.  ed.  109; 
Chicago,  K.  &  W.  R.  R.  Co.  v.  Pontius,  157  U.  S.  209,  15 
Sup.  Ct.  585,  39  L.  ed.  675),  and  for  a  purpose  within  the 
legislative  power.  There  can  be  no  doubt,  we  think, 
that  all  of  the  occupations  enumerated  in  the  statute  are 
more  or  less  inherently  dangerous  to  a  degree  which 
justifies  such  legislative  regulation  as  is  properly  within 
the  scope  of  the  police  power.  We  need  not  look  for 
illustration  or  authority  outside  of  the  Labor  Law  to 
which  this  new  statute  has  been  added.  The  whole  of 
that  law  which  precedes  the  latest  addition  is  devoted 
to  restrictions  and  regulations  imposed  upon  employers 
in  specified  occupations  or  conditions  for  the  conserva- 
tion of  the  health,  safety  and  morals  of  employes.  These 
restrictions  and  regulations  do  not  affect  all  employers 
alike  in  all  occupations,  nor  are  they  designed  to  have 
that  effect.  The  mandate  of  the  Federal  Constitution 
is  complied  with  if  all  who  are  in  a  particular  class  are 
treated  alike.  (Missouri  Pac.  Ry.  Co.  v.  Humes,  115  U. 
S.  512,  523,  6  Sup.  Ct.  110,  29  L.  ed.  463 ;  Barbier  v.  Con- 
nolly, 113  U.  S.  27,  5  Sup.  Ct.  357,  28  L.  ed.  923;  Soon 
King  v.  Crowley,  113  U.  S.  703,  5  Sup.  Ct.  730,  28  L.  ed. 
1145;  Magound  v.  Illinois  Trust  &  Sav.  Bank,  170  U.  S. 
283,  294,  77  N.  E.  970,  8  L.  R.  A.  (N.  S.)  314,  112  Am. 
St.  628;  People  ex  rel.  Hatch  v.  Reardon,  184  N.  Y. 
431;  People  ex  rel.  Farrington  v.  Mensching,  187  N. 
Y.  8,  16,  79  N.  E.  884,  10  L.  R.  A.  (N.  S.)  625),  and  that, 
we  think,  is  the  effect  of  this  classification. 

Another  objection  urged  against  the  statute  is  that 
it  violates  section  2  of  article  1  of  our  State  Constitution 


IOI  NEW  YORK  ACT.  §  57 

which  provides  that  "The  trial  by  jury  in  all  cases  in 
which  it  has  been  heretofore  used  shall  remain  inviolate 
forever."  This  objection  is  aimed  at  the  provisions  of 
sections  219-a  and  219-d  of  the  statute,  which  relate  to 
the  "scale  of  compensation"  and  "settlement  of  dis- 
putes," and  has  no  reference  to  the  fundamental  ques- 
tion whether  the  attempt  to  impose  upon  the  employer 
a  liability  when  he  is  not  at  fault,  constitutes  a  taking 
of  property  without  due  process  of  law.  In  other  words, 
the  objection  which  we  are  now  considering  bears  solely 
upon  the  question  whether  the  two  last-mentioned  sec- 
tions of  the  statute  deprive  the  employer  of  the  right  to 
have  a  jury  fix  the  amount  which  he  shall  pay  when  his 
liability  to  pay  has  been  determined  against  him.  If 
these  provisions  relating  to  compensation  are  to  be  con- 
strued as  definitely  fixing  the  amount  which  an  employer 
must  pay  in  every  case  where  his  liability  is  established 
by  the  statute,  there  can  be  no  doubt  that  they  consti- 
tute a  legislative  usurpation  of  one  of  the  functions  of  a 
common-law  jury.  In  all  cases  where  there  is  a  right 
to  trial  by  jury  there  are  two  elements  which  necessarily 
enter  into  a  verdict  for  the  plaintiff:  1.  The  right  to  re- 
cover. 2.  The  amount  of  the  recovery.  It  is  as  much 
the  right  of  a  defendant  to  have  a  jury  assess  the  dam- 
ages claimed  against  him  as  it  is  to  have  the  question  of 
his  liability  determined  by  the  same  body.  (East  Kings- 
ton v.  Towle,  48  N.  H.  57,  97  Am.  Dec.  575,  2  Am.  Rep. 
174;  Wads  worth  v.  Union  Pacific  Ry.  Co.,  18  Colo.  600, 
33  Pac.  515,  23  L.  R.  A.  812,  36  Am.  St.  309;-  Fair- 
child  v.  Rich,  68  Vt.  202,  34  Atl.  692.)  This  part  of  the 
statute,  in  its  present  form,  has  given  rise  to  conflicting 
views  among  the  members  of  the  court,  and,  since  the 
disposition  of  the  questions  which  it  suggests  is  not 
necessary  to  the  decision  of  the  case,  we  do  not  decide  it. 
Thus  far  we  have  considered  only  such  portions  of 
the  statute  as  we  deem  to  be  clearly  within  the  legisla- 


§  57       WORKMEN'S  COMPENSATION  AND  INSURANCE.      102 

tive  power,  and  one  as  to  which  there  is  difference  of 
opinion.  This  we  have  done  because  we  desire  to  pre- 
sent no  purely  technical  or  hypercritical  obstacles  to  any 
plan  for  the  beneficent  reformation  of  a  branch  of  our 
jurisprudence  in  which,  it  may  be  conceded,  reform  is  a 
consummation  devoutly  to  be  wished.  In  this  spirit 
we  have  called  attention  to  those  features  of  the  new 
statute  which  might  be  upheld  as  consonant  with  legis- 
lative authority  under  our  constitutional  limitations,  as 
well  as  to  the  sections  upon  which  we  are  in  doubt.  We 
turn  now  to  the  two  objections  which  we  regard  as  fatal 
to  its  validity. 

This  legislation  is  challenged  as  void  under  the  four- 
teenth amendment  to  the  Federal  Constitution  and 
under  section  6,  article  1  of  our  State  Constitution, 
which  guarantee  all  persons  against  deprivation  of  life, 
liberty  or  property  without  due  process  of  law.  We  shall 
not  stop  to  dwell  at  length  upon  definitions  of  "life," 
"liberty,"  "property"  and  "due  process  of  law."  They 
are  simple  and  comprehensive  in  themselves  and  have 
been  so  often  judicially  defined  that  there  can  be  no 
misunderstanding  as  to  their  meaning.  Process  of  law 
in  its  broad  sense  means  law  in  its  regular  course  of 
administration  through  courts  of  justice,  and  that  is  but 
another  way  of  saying  that  every  man's  right  to  life, 
liberty  and  property  is  to  be  disposed  of  in  accordance 
with  those  ancient  and  fundamental  principles  which 
were  in  existence  when  our  constitutions  were  adopted. 
"Due  process  of  law  implies  the  right  of  the  person  af- 
fected thereby  to  be  present  before  the  tribunal  which 
pronounces  judgment  upon  the  question  of  life,  liberty 
or  property  in  its  most  comprehensive  sense;  to  be 
heard  by  testimony  or  otherwise,  and  to  have  the  right 
of  controverting  by  proof  every  material  fact  which 
bears  upon  the  question  of  right  in  the  matter  involved. 
If  any  question  of  fact  or  liability  be  conclusively  pre- 


103  NEW  YORK  ACT.  §  57 

sumed  against  him  this  is  not  due  process  of  law."  (Zieg- 
ler  v.  S.  &  N.  Ala.  R.  R.  Co.,  58  Ala.  594.)  Liberty  has 
been  authoritatively  defined  as  "the  right  of  one  to  use 
his  faculties  in  all  lawful  ways,  to  live  and  work  where 
he  will,  to  earn  his  livelihood  in  any  lawful  calling,  and 
to  pursue  any  lawful  trade  or  avocation"  (Matter  of 
Jacobs,  98  N.  Y.  98,  106,  50  Am.  Rep.  636) ;  and  the 
right  of  property  as  "the  right  to  acquire,  possess  and 
enjoy  it  in  any  way  consistent  with  the  equal  rights  of 
others  and  the  just  exactions  and  demands  of  the  State." 
(Bertholf  v.  O'Reilly,  74  N.  Y.  509,  515,  30  Am.  Rep. 
323.)  The  several  industries  and  occupations  enumer- 
ated in  the  statute  before  us  are  concededly  lawful 
within  any  of  the  numerous  definitions  which  might  be 
referred  to,  and  have  always  been  so.  They  are,  there- 
fore, under  the  constitutional  protection.  One  of  the 
inalienable  rights  of  every  citizen  is  to  hold  and  enjoy 
his  property  until  it  is  taken  from  him  by  due  process 
of  law.  When  our  constitutions  were  adopted  it  was 
the  law  of  the  land  that  no  man  who  was  without  fault 
or  negligence  could  be  held  liable  in  damages  for  in- 
juries sustained  by  another.  That  is  still  the  law,  ex- 
cept as  to  the  employers  enumerated  in  the  new  statute, 
and  as  to  them  it  provides  that  they  shall  be  liable  to 
their  employes  for  personal  injury  by  accident  to  any 
workman  arising  out  of  and  in  the  course  of  the  em- 
ployment which  is  caused  in  whole  or  in  part,  or  is  con- 
tributed to,  by  a  necessary  risk  or  danger  of  the  employ- 
ment or  one  inherent  in  the  nature  thereof,  except  that 
there  shall  be  no  liability  in  any  case  where  the  injury 
is  caused  in  whole  or  in  part  by  the  serious  and  wilful 
misconduct  of  the  injured  workman.  It  is  conceded 
that  this  is  a  liability  unknown  to  the  common  law  and 
we  think  it  plainly  constitutes  a  deprivation  of  liberty 
and  property  under  the  Federal  and  State  Constitutions, 
unless  its  imposition  can  be  justified  under  the  police 


§  57       WORKMEN'S  COMPENSATION  AND  INSURANCE.      104 

power  which  will  be  discussed  under  a  separate  head.  In 
arriving  at  this  conclusion  we  do  not  overlook  the  cogent 
economic  and  sociological  arguments  which  are  urged 
in  support  of  the  statute.  There  can  be  no  doubt  as  to 
the  theory  of  this  law.  It  is  based  upon  the  proposition 
that  the  inherent  risks  of  an  employment  should  in  jus- 
tice be  placed  upon  the  shoulders  of  the  employer,  who 
can  protect  himself  against  loss  by  insurance  and  by 
such  an  addition  to  the  price  of  his  wares  as  to  cast  the 
burden  ultimately  upon  the  consumer;  that  indemnity 
to  an  injured  employe  should  be  as  much  a  charge  upon 
the  business  as  the  cost  of  replacing  or  repairing  dis- 
abled or  defective  machinery,  appliances  or  tools;  that, 
under  our  present  system,  the  loss  falls  immediately 
upon  the  employe  who  is  almost  invariably  unable  to- 
bear  it,  and  ultimately  upon  the  community  which  is- 
taxed  for  the  support  of  the  indigent;  and  that  our  pres- 
ent system  is  uncertain,  unscientific  and  wasteful,  and 
fosters  a  spirit  of  antagonism  between  employer  and 
employe  which  it  is  to  the  interests  of  the  state  to  re- 
move. We  have  already  admitted  the  strength  of  this, 
appeal  to  a  recognized  and  widely  prevalent  sentiment,, 
but  we  think  it  is  an  appeal  which  must  be  made  to  the 
people  and  not  to  the  courts.  The  right  of  property  rests 
not  upon  philosophical  or  scientific  speculation  nor  upon 
the  commendable  impulses  of  benevolence  or  charity, 
nor  yet  upon  the  dictates  of  natural  justice.  The  right 
has  its  foundation  in  the  fundamental  law.  That  can  be 
changed  by  the  people,  but  not  by  legislatures.  In  a 
government  like  ours  theories  of  public  good  or  neces- 
sity are  often  so  plausible  or  sound  as  to  command 
popular  approval,  but  courts  are  not  permitted  to  forget 
that  the  law  is  the  only  chart  by  which  the  ship  of  state 
is  to  be  guided.  Law  as  used  in  this  sense  means  the 
basic  law  and  not  the  very  act  of  legislation  which  de- 
prives the  citizen  of  his  rights,  privileges  or  property. 


IO5  NEW  YORK  ACT.  §  57 

Any  other  view  would  lead  to  the  absurdity  that  the 
constitutions  protect  only  those  rights  which  the  legis- 
tures  do  not  take  away.  If  such  economic  and  sociolo- 
gic  arguments  as  are  here  advanced  in  support  of  this 
statute  can  be  allowed  to  subvert  the  fundamental  idea 
of  property,  then  there  is  no  private  right  entirely  safe, 
because  there  is  no  limitation  upon  the  absolute  dis- 
cretion of  legislatures,  and  the  guarantees  of  the  con- 
stitution are  a  mere  waste  of  words.  (Wynehamer  v. 
People,  13  N.  Y.  378;  Taylor  v.  Porter,  4  Hill  140,  145, 
40  Am.  Dec.  274;  Norman  v.  Heist,  5  Watts  &  Serg. 
193,  40  Am.  Dec.  493;  Hake  v.  Henderson,  4  Dev.  15.) 
As  stated  by  Judge  Comstock  in  the  case  of  Wyneham- 
er v.  People,  "these  constitutional  safeguards,  in  all 
cases,  require  a  judicial  investigation,  not  to  be  gov- 
erned by  a  law  specially  enacted  to  take  away  and  de- 
stroy existing  rights,  but  confined  to  the  question 
whether,  under  the  pre-existing  rule  of  conduct,  the 
right  in  controversy  has  been  lawfully  acquired  and  is 
lawfully  possessed."  (P.  395.)  If  the  argument  in  sup- 
port of  this  statute  is  sound  we  do  not  see  why  it  cannot 
logically  be  carried  much  further.  Poverty  and  misfor- 
tune from  every  cause  are  detrimental  to  the  state.  It 
would  probably  conduce  to  the  welfare  of  all  concerned 
if  there  could  be  a  more  equal  distribution  of  wealth. 
Many  persons  have  much  more  property  than  they 
can  use  to  advantage  and  many  more  find  it  impossible 
to  get  the  means  for  a  comfortable  existence.  If  the 
legislature  can  say  to  an  employer,  "you  must  compen- 
sate your  employe  for  an  injury  not  caused  by  you  or 
by  your  fault,"  why  can  it  not  go  further  and  say  to  the 
man  of  wealth,  "you  have  more  property  than  you  need 
and  your  neighbor  is  so  poor  that  he  can  barely  sub- 
sist; in  the  interest  of  natural  justice  you  must  divide 
with  your  neighbor  so  that  he  and  his  dependents  shall 
not  become  a  charge  upon  the  State?"  The  argument 


§  57       WORKMEN'S  COMPENSATION  AND  INSURANCE.       106 

that  the  risk  to  an  employe  should  be  borne  by  the  em- 
ployer, because  it  is  inherent  in  the  employment  may 
be  economically  sound,  but  it  is  at  war  with  the  legal 
principle  that  no  employer  can  be  compelled  to  assume 
a  risk  which  is  inseparable  from  the  work  of  the  em- 
ploye, and  which  may  exist  in  spite  of  a  degree  of  care 
by  the  employer  far  greater  than  may  be  exacted  by  the 
most  drastic  law.  If  it  is  competent  to  impose  upon  an 
employer,  who  has  omitted  no  legal  duty  and  has  com- 
mitted no  wrong,  a  liability  based  solely  upon  a  legisla- 
tive fiat  that  his  business  is  inherently  danger- 
ous, it  is  equally  competent  to  visit  upon  him  a  special 
tax  for  the  support  of  hospitals  and  other  charitable  in- 
stitutions, upon  the  theory  that  they  are  devoted  largely 
to  the  alleviation  of  ills  primarily  due  to  his  business.  In 
its  final  and  simple  analysis  that  is  taking  the  property 
of  A  and  giving  it  to  B,  and  that  cannot  be  done  under 
our  constitutions.  Practical  and  simple  illustrations  of 
the  extent  to  which  this  theory  of  liability  might  be  car- 
ried could  be  multiplied  ad  infinitum,  and  many  will 
readily  occur  to  the  thoughtful  reader.  There  is,  of 
course,  in  this  country  no  direct  legal  authority  upon 
the  subject  of  the  liability  sought  to  be  imposed  by  this 
statute,  for  the  theory  is  not  merely  new  in  our  system 
of  jurisprudence,  but  plainly  antagonistic  to  its  basic 
idea.  The  English  authorities  are  of  no  assistance  to 
us,  because  in  the  king's  courts  the  decrees  of  the  Par- 
liament are  the  supreme  law  of  the  land,  although  they 
are  interesting  in  their  disclosures  of  the  paternalism 
which  logically  results  from  a  universal  employers'  lia- 
bility based  solely  upon  the  relation  of  employer  and 
employe,  and  not  upon  fault  in  the  employer.  There 
are  a  few  American  cases,  however,  which  clearly  state 
the  legal  principle  which,  we  think,  is  applicable  to  the 
case  at  bar,  and  with  a  brief  reference  to  them  we  shall 
close  this  branch  of  the  discussion.  In  the  nitroglycer- 


IO/  NEW  YORK  ACT.  §  57 

ine  case  (Parrot  v.  Wells,  Fargo  &  Co.,  15  Wall.  524, 
21  L.  ed.  206)  the  plaintiff,  who  was  the  common  land- 
lord of  the  defendants  and  other  tenants,  sought  to 
hold  the  defendants  liable  for  damages  occasioned  to 
the  premises  occupied  by  the  other  tenants,  by  an  ex- 
plosion of  nitroglycerine  which  had  been  delivered  to 
the  defendants  as  common  carriers  for  shipment.  It 
appeared  that  the  defendants  were  innocently  ignorant 
of  the  contents  of  the  packages  containing  the  danger- 
ous explosives,  and  that  they  were  guilty  of  no  negli- 
gence in  receiving  or  handling  them.  Upon  these  facts 
the  Federal  Supreme  Court  held  that  it  was  a  case  of 
unavoidable  accident  for  which  no  one  was  legally  re- 
sponsible. In  Ohio  &  Mississippi  Ry.  Co.  v.  Lackey  (78 
111.  55,  20  Am.  Rep.  259)  the  question  was  whether  the 
railroad  company  was  liable  under  a  statute  which  pro- 
vided that  "every  railroad  company  running  cars  within 
this  State  shall  be  liable  for  all  the  expense  of  the  coro- 
ner and  his  inquest,  and  the  burial  of  all  persons  who 
may  die  on  the  cars,  or  who  may  be  killed  by  collision 
or  other  accident  occurring  to  such  cars,  or  otherwise." 
In  speaking  of  the  effect  of  that  section  of  the  law  Mr. 
Justice  Breese  observed :  "An  examination  of  the  sec- 
tion will  show  that  no  default,  or  negligence  of  any  kind, 
need  be  established  against  the  railroad  company,  but 
they  are  mulcted  in  heavy  charges  if,  notwithstanding 
all  their  care  and  caution,  a  death  should  occur  on  one 
of  their  cars,  no  matter  how  caused,  even  if  by  the 
party's  own  hand.  Running  of  trains  by  these  corpora- 
tions is  lawful  and  of  great  public  benefit.  It  is  not 
claimed  that  the  liability  attaches  for  the  violation  of 
any  law,  the  omission  of  any  duty  or  the  want  of  proper 
care  or  skill  in  running  their  trains.  The  penalty  is  not 
aimed  at  anything  of  this  kind.  We  say  penalty,  for  it 
is  in  the  nature  of  a  penalty,  and  there  is  a  constitutional 
inhibition  against  imposing  penalties  where  no  law  has 


§  57       WORKMEN'S  COMPENSATION  AND  INSURANCE.      108- 

been  violated  or  duty  neglected.  Neither  is  pretended 
in  this  case,  nor  are  they  in  contemplation  of  the  statute. 
A  passenger  on  a  train  dies  from  sickness.  He  is  a  man 
of  wealth.  Why  should  his  burial  expenses  be  charged  to 
the  railroad  company?  There  is  neither  reason  nor 
justice  in  it ;  and  if  he  be  poor,  having  not  the  means  for 
a  decent  burial,  the  general  law  makes  ample  provision 
for  such  cases."  To  the  same  effect  are  the  numerous 
cases  arising  under  statutes  passed  by  different  states 
imposing  upon  railroad  corporations  absolute  liability 
for  killing  or  injuring  upon  their  rights  of  way  horses, 
cattle,  etc.,  by  running  over  them,  in  which  this  liability 
was  held  to  constitute  a  deprivation  of  property  with- 
out due  process  of  law.  (Jensen  v.  Union  Pacific  Ry. 
Co.,  6  Utah  253,  21  Pac.  994,  4  L.  R.  A.  724;  Ziegler  v. 
South  &  North  Alabama  Ry.  Co.,  58  Ala.  594;  Birming- 
ham Ry.  Co.  v.  Parsons,  100  Ala.  662,  13  So.  602,  27 
L.  R.  A.  263,  46  Am.  St.  92;  Bielingbery  v.  Mon- 
tana Union  Ry.  Co.,  8  Mont.  271,  20  Pac.  314,  2  L.  R.  A. 
813;  Schenk  v.  Union  Pacific  Ry.  Co.,  5  Wyo.  430,  40' 
Pac.  840;  Catril  v.  Union  Pacific  Ry.  Co.,  2  Idaho  576, 
21  Pac.  416.) 

A  different  interpretation  has  been  given  to  statutes 
imposing  upon  railroad  corporations  the  duty  to  fence 
their  rights  of  way,  under  which  the  liability  is  imposed 
for  failure  to  obey  the  command  of  the  statutes.  (Quack- 
enbush  v.  Wisconsin  Ry.  Co.,  62  Wis.  411,  22  N.  W.  519; 
Missouri  Pac.  Ry.  Co.  v.  Humes,  115  U.  S.  512,  6  Sup. 
Ct.  110,  29  L.  ed.  463;  Minneapolis  &  St.  L.  Ry.  Co.  v, 
Beckwith,  129  U.  S.  26,  9  Sup.  Ct.  207,  32  L.  ed.  585.) 
"But  even  such  statutes,"  says  Black  in  his  work  on  Con- 
stitutional Law  (2d  ed.  p.  351),  "cannot  go  beyond  the 
imposition  of  such  a  penalty  in  cases  where  the  fault  lies 
at  the  door  of  the  company.  If  the  law  attempts  to  make 
such  companies  liable  for  accidents  which  were  not 
caused  by  their  negligence  or  disobedience  of  the  law, 


IO9  NEW  YORK  ACT.  §  57 

but  by  the  negligence  of  others  or  by  uncontrollable 
causes,  or  does  not  give  the  company  an  opportunity  to 
.show  these  facts  in  its  own  defense,  it  is  void." 

We  conclude,  therefore,  that  in  its  basic  and  vital 
features  the  right  given  to  the  employe  by  this  statute, 
does  not  preserve  to  the  employer  the  "due  process"  of 
law  guaranteed  by  the  constitutions,  for  it  authorizes  the 
taking  of  the  employer's  property  without  his  consent 
and  without  his  fault.  So  far  as  the  statute  merely 
creates  a  new  remedy  in  addition  to  those  which  existed 
before  it  is  not  invalid.  The  state  has  complete  control 
over  the  remedies  which  it  offers  to  suitors  in  its  courts 
even  to  the  point  of  making  them  applicable  to  rights 
-or  equities  already  in  existence.  It  may  change  the 
common  law  and  the  statutes  so  as  to  create  duties  and 
liabilities  which  never  existed  before.  It  is  true,  as 
stated  by  Mr.  Justice  Brown  in  Holden  v.  Hardy  (169 
U.  S.  366,  385,  386),  that  "the  law  is,  to  a  certain  extent, 
a  progressive  science;  that  in  some  of  the  states  meth- 
ods of  procedure,  which  at  the  time  the  constitution 
was  adopted  were  deemed  essential  to  the  protection 
and  safety  of  the  people,  or  to  the  liberty  of  the  citizen, 
have  been  found  to  be  no  longer  necessary;  that  restric- 
tions which  had  formerly  been  laid  upon  the  conduct  of 
individuals,  or  of  classes  of  individuals,  had  proved  detri- 
mental to  their  interests;  while,  upon  the  other  hand, 
certain  other  classes  of  persons,  particularly  those  en- 
gaged in  dangerous  or  unhealthful  employments,  have 
teen  found  to  be  in  need  of  additional  protection.  Even 
before  the  adoption  of  the  constitution,  much  had  been 
done  toward  mitigating  the  severity  of  the  common  law, 
particularly  in  the  administration  of  its  criminal  branch. 
*  *  *  The  present  century  has  originated  legal  reforms 
of  no  less  importance.  The  whole  fabric  of  special  plead- 
ing, once  thought  to  be  necessary  to  the  elimination  of 
the  real  issue  between  the  parties,  has  crumbled  to 


§  57       WORKMEN'S  COMPENSATION  AND  INSURANCE.      no 

pieces.  The  ancient  tenures  of  real  estate  have  been 
largely  swept  away,  and  land  is  now  transferred  almost 
as  easily  and  cheaply  as  personal  property.  Married 
women  have  been  emancipated  from  the  control  of  their 
husbands  and  placed  upon  a  practical  equality  with  them 
with  respect  to  the  acquisition,  possession  and  transmis- 
sion of  property.  Imprisonment  for  debt  has  been  abol- 
ished. Exemptions  from  execution  have  been  largely 
added  to,  and  in  most  of  the  states  homesteads  are  ren- 
clered  incapable  of  seizure  and  sale  upon  forced  proc- 
ess. Witnesses  are  no  longer  incompetent  by  reason 
of  interest,  even  though  they  be  parties  to  the  litiga- 
tion. Indictments  have  been  simplified,  and  an  indict- 
ment for  the  most  serious  of  crimes  is  now  the  simplest 
of  all.  In  several  of  the  states  grand  juries,  formerly 
the  only  safeguard  against  a  malicious  prosecution,  have 
been  largely  abolished,  and  in  others  the  rule  of  unanim- 
ity, so  far  as  applied  to  civil  cases,  has  given  way  to 
verdicts  rendered  by  a  three-fourths  majority."  The 
power  of  the  state  to  make  such  changes  in  methods 
of  procedure  and  in  substantive  law  is  clearly  recog- 
nized. (Hurtado  v.  California,  110  U.  S.  516,  4  Sup.  Ct. 
Ill,  292,  28  L.  ed.  232;  Hayes  v.  Missouri,  120  U.  S.  68, 
7  Sup.  Ct.  350,  30  L.  ed.  578;  Missouri  Pac.  R.  Co.  v. 
Mackey,  127  U.  S.  205,  8  Sup.  Ct.  1161,  32  L.  ed.  107; 
Hallinger  v.  Davis,  146  U.  S.  314,  13  Sup.  Ct.  105,  36  L. 
ed.  986;  Matter  of  Kemmler,  136  U.  S.  436,  10  Sup.  Ct. 
930,  34  L.  ed.  519;  Duncan  v.  Missouri,  152  U.  S.  377, 
14  Sup.  Ct.  570,  38  L.  ed.  485.)  We  repeat,  however, 
that  this  power  must  be  exercised  within  the  constitu- 
tional limitations  which  prescribe  the  law  of  the  land. 
"Due  process  of  law"  is  process  due  according  to  the 
law  of  the  land,  and  the  phrase  as  used  in  the  fourteenth 
amendment  of  the  Federal  Constitution  with  reference  to 
the  power  of  the  states  means  the  general  law  of  the 
several  states  as  fixed  or  guaranteed  by  their  constitu- 


Ill  NEW  YORK  ACT.  §  57 

tions.  As  stated  by  Mr.  Webster,  in  the  Dartmouth 
College  case,  "the  law  of  the  land  is  the  general  law; 
the  law  which  hears  before  it  condemns,  which  proceeds 
upon  inquiry  and  renders  judgment  only  after  trial." 

If  we  are  warranted  in  concluding  that  the  new 
statute  violates  private  right  by  taking  the  property  of 
one  and  giving  it  to  another  without  due  process  of 
law,  that  is  really  the  end  of  this  case.  But  the  auspices 
under  which  this  legislation  was  enacted,  no  less  than 
its  intrinsic  importance,  entitle  its  advocates  to  the 
fullest  consideration  of  every  argument  in  its  support, 
and  we,  therefore,  take  up  the  discussion  of  the  police 
power  under  which  this  law  is  sought  to  be  justified. 
The  police  power  is,  of  course,  one  of  the  necessary  at- 
tributes of  civilized  government.  In  its  most  compre- 
hensive sense  it  embraces  the  whole  system  by  which 
the  state  seeks  to  preserve  the  public  order,  to  prevent 
offenses  against  the  law,  to  insure  to  citizens  in  their 
intercourse  with  each  other  the  enjoyment  of  their  own 
so  far  as  is  reasonably  consistent  with  a  like  enjoyment 
of  rights  by  others.  Under  it  persons  and  property  are 
subjected  to  all  kinds  of  restraints  and  burdens  in  order 
to  secure  the  general  comfort,  health  and  prosperity 
of  the  state.  But  it  is  a  power  which  is  always  subject 
to  the  constitution,  for  in  a  constitutional  government 
limitation  is  the  abiding  principle,  exhibited  in  its  high- 
est form  in  the  constitution  as  the  deliberative  judg- 
ment of  the  people,  which  moderates  every  claim  of 
right  and  controls  every  use  of  power.  In  the  language 
of  Chief  Justice  Shaw,  in  Commonwealth  v.  Alger  (7 
Cush.  (Mass.)  85):  "It  is  much  easier  to  perceive  and 
realize  the  existence  and  sources  of  this  power  than  to 
mark  its  boundaries  or  prescribe  limits  to  its  exercise." 
It  covers  a  multitude  of  things  that  are  designed  to  pro- 
tect life,  limb,  health,  comfort,  peace  and  property  ac- 
cording to  the  maxim  sic  utere  tuo  ut  alienum  non 


§  57       WORKMEN'S  COMPENSATION  AND  INSURANCE.      112 

laedas,  but  its  exercise  is  justified  only  when  it  appears 
that  the  interests  of  the  public  generally,  as  distin- 
guished from  those  of  a  particular  class,  require  it,  and 
when  the  means  used  are  reasonably  necessary  for  the 
accomplishment  of  the  desired  end,  and  are  not  unduly 
oppressive.  (Lawton  v.  Steele,  152  U.  S.  133,  137,  14 
Sup.  Ct.  499,  38  L.  ed.  385;  Colon  v.  Lisk,  153  N.  Y.  188, 
196,  47  N.  E.  302,  60  Am.  St.  609;  Wright  v.  Hart,  182  N. 
Y.  330,  75  N.  E.  404,  2  L.  R.  A.  (N.  S.)  338.)  In  order  to 
sustain  the  legislation  under  the  police  power  the  courts 
must  be  able  to  see  that  its  operation  tends  in  some  de- 
gree to  prevent  some  offense  or  evil,  or  to  preserve  pub- 
lic health,  morals,  safety  and  welfare.  If  it  discloses  no 
such  purpose,  but  is  clearly  calculated  to  invade  the  lib- 
erty and  property  of  private  citizens,  it  is  plainly  the 
duty  of  the  courts  to  declare  it  invalid,  for  legislative 
assumption  of  the  right  to  direct  the  channel  into  which 
the  private  energies  of  the  citizen  may  flow,  or  legisla- 
tive attempt  to  abridge  or  hamper  the  right  of  the  citi- 
zen to  pursue,  unmolested  and  without  unreasonable 
regulation,  any  lawful  calling  or  avocation  which  he 
may  choose,  has  always  been  condemned  under  our 
form  of  government.  Concrete  illustrations  of  what 
may  and  what  may  not  be  done  under  the  police  power 
are  to  be  found  in  this  very  Labor  Law  of  which  the 
new  statute  is  a  part.  As  this  statute  stood  before  arti- 
cle 14-a  was  added,  it  regulated  electric  work,  the  opera- 
tion of  elevators,  work  on  scaffolds,  work  with  explo- 
sives and  compressed  air,  the  construction  of  tunnels 
and  railroad  work.  It  regulated  the  hours  of  work  in 
certain  employments;  it  directed  the  payment  of  wages 
in  cash  at  specified  periods ;  it  provided  for  the  protec- 
tion of  employes  engaged  in  the  erection  of  buildings; 
it  compelled  the  employer  to  guard  dangerous  and  ex- 
posed machinery;  to  construct  fire  escapes  and  venti- 
lating appliances;  to  provide  toilet  facilities,  pure  drink- 


113  NEW  YORK  ACT.  §57 

ing  water  and  sanitary  arrangements;  it  prohibited  the 
employment  of  women,  and  of  children  under  certain 
ages,  in  specified  occupations;  it  regulated  the  hours  of 
'labor  of  minors;  it  modified  the  fellow-servant  rule,  the 
law  of  contributory  negligence  and  the  assumption  of 
risks;  and,  in  short,  it  imposed  upon  the  employer  many 
restrictions  and  duties  which  were  unknown  to  the 
common  law.  Broadly  classified,  all  these  and  similar 
statutory  provisions  which  are  designed,  in  one  way  or 
another,  to  conserve  the  health,  safety  or  morals  of  the 
employes,  and  to  increase  the  duties  and  responsibili- 
ties of  the  employer,  are  rules  of  conduct  which  properly 
fall  within  the  sphere  of  the  police  power.  (Holden  v. 
Hardy,  169  U.  S.  366,  18  Sup.  Ct.  383,  42  L.  ed.  780;  Mis- 
souri Pac.  Ry.  Co.  v.  Mackey,  127  U.  S.  205,  8  Sup.  Ct. 
1161,  32  L.  ed.  107.)  But  the  new  addition  to  the  Labor 
Law  is  of  quite  a  different  character.  It  does  nothing 
to  conserve  the  health,  safety  or  morals  of  the  employes, 
and  it  imposes  upon  the  employer  no  new  or  affirma- 
tive duties  or  responsibilities  in  the  conduct  of  his  busi- 
ness. Its  sole  purpose  is  to  make  him  liable  for  injuries 
which  may  be  sustained  wholly  without  his  fault,  and 
solely  through  the  fault  of  the  employe,  except  where 
the  latter  fault  is  such  as  to  constitute  serious  and  will- 
ful misconduct.  Under  this  law,  the  most  thoughtful 
and  careful  employer,  who  has  neglected  no  duty,  and 
whose  workshop  is  equipped  with  every  possible  appli- 
ance that  may  make  for  the  safety,  health  and  morals 
of  his  employes,  is  liable  in  damages  to  any  employe 
who  happens  to  sustain  injury  through  an  accident 
which  no  human  being  can  foresee  or  prevent,  or.  which, 
if  preventable  at  all,  can  only  be  prevented  by  the  rea- 
sonable care  of  the  employe  himself.  That  this  is  the  un- 
mistakable theory  and  purpose  of  the  act  is  made  per- 
fectly plain  by  the  recital  in  section  215,  which  sets 
forth  that  from  the  nature,  conditions  or  means  of  pro- 

g— BOYJ>  W  C 


§  57         WORKMEN  S  COMPENSATION  AND  INSURANCE.         1 14 

secution  of  the  work  in  the  employments  which  are 
classified  as  dangerous,  "extraordinary  risks  to  the  life 
and  limb  of  workmen  engaged  therein  are  inherent, 
necessary  or  substantially  unavoidable,  and  as  to  each 
of  which  employments  it  is  deemed  necessary  to  estab- 
lish ar  new  system  of  compensation  for  accidents  to 
workmen."  And  to  make  the  matter  still  more  plain, 
the  learned  counsel  for  the  commission  argues  in  his 
brief  that  "if  it  is  competent  for  the  legislature  to  say 
to  the  employer  in  a  dangerous  trade,  'use  the  utmost 
care  in  giving  your  workmen  safe  work,  so  that  no  act 
of  yours,  or  implement  of  yours,  or  work  that  you  set 
them  to  do  shall  hurt  them,  and  if  you  fail  you  shall  be 
liable  in  damages,'  if  it  is  competent  to  make  such  a 
law,  then  it  is  equally  competent  to  say  as  in  this  new 
act  directly,  'you  shall  be  responsible  for  all  damages 
caused  by  unsafe  condition  of  work,'  and  that  is  just 
what  the  liability  for  trade  risks  under  the  new  act 
means."  In  this  argument  the  learned  counsel  ignores, 
or  at  least  misses,  as  we  think,  the  vital  distinction  be- 
tween legislation  which  imposes  upon  an  employer  a 
legal  duty,  for  the  failure  to  perform  which  he  may  be 
penalized  or  rendered  liable  in  damages,  and  legislation 
which  makes  him  liable  notwithstanding  he  has  faith- 
fully observed  every  duty  imposed  upon  him  by  law. 
At  pages  46  and  47  of  the  report  of  the  commissioners 
are  quoted  the  several  pertinent  provisions  of  our  State 
Constitution.  (Art  1,  sec.  18;  art.  1,  sec.  2;  art.  1,  sec.  1 ; 
art.  1,  sec.  6.)  With  reference  to  these,  the  commis- 
sioners say:  "It  is  obvious,  on  a  mere  reading,  that  the 
first  section  makes  it  impossible  for  the  legislature  to 
enact  any  law  which  will  take  away  from  the  represen- 
tatives of  an  injured  workman  the  right  of  action  there 
named  for  injuries  causing  death,  nor  can  the  legislature 
limit  it  in  any  way.  It  is  equally  obvious,  it  seems  to 
us,  that  it  was  the  intention  of  the  second  section  of 


115  NEW  YORK  ACT.  §  57 

the  Constitution  (Art.  1,  sec.  2),  to  provide  that  in  all 
controversies  in  the  courts  of  law  either  side  should 
finally  have  a  right  to  a  jury  trial  on  the  question  of  lia- 
bility, and  however  successful  or  unsuccessful  jury  trials 
may  be  in  cases  of  employer's  liability,  or  in  other  cases, 
that  solemn  mandate  of  the  Constitution  cannot  be  set 
aside.  The  third  and  fourth  sections  of  the  Constitution 
above  quoted  are  practically  those  which,  like  the  four- 
teenth amendment  of  the  Federal  Constitution,  provide 
for  due  process  of  law  in  all  legislation,  that  is,  speaking 
generally,  which  prohibit  the  passage  by  the  legislature 
of  such  legislation  as  shall  arbitrarily  deprive  any  of  the 
citizens  of  the  state  of  life,  liberty  or  property." 

These  are  interesting  and  salient  admissions,  but  the 
ease  with  which  these  constitutional  provisions  are 
brushed  aside  is  startling.  Continuing,  the  commis- 
sioners say:  "But  we  regard  it  as  settled  that  the  legis- 
lature has  power,  if  it  so  chooses,  to  change  or  abrogate 
the  common  law  on  employer's  liability,  or  the  Em- 
ployers' Liability  Act,  or  any  other  statutes  in  regard 
thereto.  *  *  *  The  legislature  of  this  state,  in  the 
exercise  of  its  general  powers,  *  *  *  has  in  the 
past  so  legislated  as  to  prescribe  that  employers  in  New 
York  industries,  shall  conduct  their  business,  use  their 
machines  and  use  their  property  in  such  ways  as  shall 
conduce  to  the  safety  of  the  employes  and  the  preven- 
tion of  accident  and  disease.  Such  is  the  whole  purpose 
of  the  Labor  Law.  *  *  *  We  are  of  opinion  that  it 
is  competent  for  the  legislature  to  take  a  further  step 
and  provide  conditions  of  the  carrying  on  of  such  dan- 
gerous industries — not  at  the  moment  conditions  as  to 
the  method  of  carrying  them  on — but  conditions  pro- 
viding that  any  man  in  the  state  who  carries  on  such 
dangerous  trades  shall  be  liable  to  make  compensation 
to  the  employes  injured  either  by  the  fault  of  the  em- 
ployer, or  by  those  unavoidable  risks  of  the  employ- 


§  57       WORKMEN'S  COMPENSATION  AND  INSURANCE.      116 

ment.  The  effect  of  such  a  statute  would  be  to  reverse 
the  common-law  doctrine  that  the  employe  assumes  the- 
risk  of  his  employment." 

With  all  due  respect  to  the  members  of  the  com- 
mission we  beg  to  observe  that  the  statute  enacted  in 
conformity  with  their  recommendations,  does  not  stop 
at  reversing  the  common  law;  it  attempts  to  reverse  the 
very  provisions  of  the  Constitution  which,  the  commis- 
sioners admit,  are  obviously  beyond  the  reach  of  the  leg- 
islature. We  cannot  understand  by  what  power  the  leg- 
islature can  take  away  from  the  employer  a  constitu- 
tional guaranty  of  which  the  employe  may  not  also  be 
deprived.  If  it  is  beyond  the  power  of  the  legislature  to 
take  from  the  representatives  of  deceased  employes 
their  rights  of  action  under  the  Constitution,  by  what 
measure  of  power  or  justice  may  the  legislature  assume 
to  take  from  the  employer  the  right  to  have  his  liability 
determined  in  an  action  at  law?  Conceding,  as  we  do, 
that  it  is  within  the  range  of  proper  legislative  action 
to  give  a  workman  two  remedies  for  a  wrong,  when 
he  had  but  one  before,  we  ask,  by  what  stretch  of  the 
police  power  is  the  legislature  authorized  to  give  a 
remedy  for  no  wrong?  If,  before  the  passage  of  this 
law,  the  employer  had  a  right  to  a  jury  trial  upon  the 
question  of  liability,  where  and  how  did  he  lose  it?  Can 
it  be  taken  from  him  by  the  mere  assertion  that  this 
statute 'only  reverses  the  common-law  doctrine  that  the 
employe  assumes  the  risk  of  his  employment?  It  would 
be  quite  as  logical  and  effective  to  argue  that  this  legis- 
lation only  reverses  the  laws  of  nature,  for  in  everything 
within  the  sphere  of  human  activity  the  risks  which  are 
inherent  and  unavoidable  must  fall  upon  those  who  are 
exposed  to  them.  We  must  admit  that  what  the  legis- 
lature may  prohibit  it  may  absolutely  control.  Where 
the  right  to  exist,  as  in  case  of  corporations,  depends 
upon  the  will  of  the  legislature,  that  right  may  be  grant- 


NEW  YORK  ACT.  §  57 

ed  subject  to  prescribed  conditions.  In  such  a  case  an 
employer  may  be  made  an  insurer  of  the  safety  of  his 
employes  as  a  condition  of  the  permission  to  engage  in 
business.  But  when  an  industry  or  calling  is  per  se 
lawful  and  open  to  all,  and,  therefore,  beyond  the  prohi- 
bitive power  of  the  legislature,  the  right  of  government- 
al control  is  subject  to  such  reasonable  enactments  as 
are  directly  designed  to  conserve  health,  safety,  com- 
fort, morals,  peace  and  order.  (Lochner  v.  New  York, 
198  U.  S.  45,  25  Sup.  Ct.  539,  49  L.  ed.  937.)  For  the  fail- 
ure of  an  employer  to  observe  such  regulations  the  leg- 
islature may  unquestionably  enact  direct  penalties  or 
create  presumptions  of  fault  which,  if  not  rebutted  by 
proof,  may  be  regarded  as  sufficient  evidence  of  liability 
for  damages.  That  must  be  the  extreme  limit  of  the 
police  power,  for  just  beyond  is  the  Constitution  which, 
in  substance  and  effect,  forbids  that  a  citizen  shall  be 
penalized  or  subjected  to  liability  unless  he  has  violated 
some  law  or  has  been  guilty  of  some  fault. 

The  limitations  of  the  police  power  are  illustrated  in 
a  great  variety  of  cases.  In  Matter  of  Jacobs  (98  N.  Y. 
98,  99,  50  Am.  Rep.  636),  it  was  held  that  an  act  was 
void  which  made  it  a  misdemeanor  to  manufacture  ci- 
gars or  prepare  tobacco  in  certain  tenements.  In  People 
v.  Marx  (99  N.  Y.  377,  2  N.  E.  29,  52  Am.  Rep.  34),  this 
court  condemned  an  act  absolutely  prohibiting  the  man- 
ufacture or  sale  of  oleomargarine,  upon  the  ground  that 
it  interfered  with  a  lawful  industry,  not  injurious  to  the 
public  and  not  fraudulently  conducted,  although  in  a 
later  case  (People  v.  Arensberg,  105  N.  Y.  123,  11  N.  E. 
277,  59  Am.  Rep.  483),  another  statute  relating  to  the 
same  subject  was  upheld  because  it  was  directly  aimed 
at  a  designed  and  intentional  imitation  of  dairy  butter. 
In  People  v.  Gillson  (109  N.  Y.  389,  404,  17  N.  E.  343,  4 
Am.  St.  465)  it  was  held  that  a  statute  was  not  within 
the  police  power  which  prohibited  the  sale  or  dis- 


§  57       WORKMEN'S  COMPENSATION  AND  INSURANCE.      118 

posal  of  any  article  of  food  upon  any  representation  or 
inducement  that  anything  else  will  be  delivered  as  a  gift, 
prize,  premium  or  reward  to  the  purchaser.  The  ground 
of  the  decision  was  that  it  was  not  a  health  law ;  that  it 
was  not  designed  to  prevent  the  adulteration  of  food, 
and  that  it  was  not  in  the  power  of  the  legislature  to 
convert  an  innocent  act  into  a  crime.  In  Colon  v.  Lisk 
(153  N.  Y.  188,  47  N.  E.  302,  60  Am.  St.  609)  the 
statute  under  consideration  provided  for  the  summary 
seizure  of  any  boat  or  vessel,  used  by  one  person  in  in- 
terfering with  the  oysters  or  shell  fish  of  another,  and 
for  its  forfeiture  and  sale.  It  was  held  that  the  statute 
sanctioned  an  unauthorized  confiscation  of  private  prop- 
erty for  the  mere  protection  of  private  rights  and  was 
not  within  the  police  power  of  the  state.  In  People  v. 
Hawkins  (157  N.  Y.  1,  51  N.  E.  257,  68  Am.  St.  736, 
42  L.  R.  A.  490)  this  court  decided  that  a  statute  was 
void  which  made  it  a  misdemeanor  to  sell  or  expose  for 
sale  any  goods  made  in  a  penal  institution  unless  they 
were  labeled  "convict  made."  In  People  v.  Orange 
County  Road  Com.  Co.  (175  N.  Y.  84,  67  N.  E.  129,  65 
L.  R.  A.  33)  it  was  held  that  the  state  cannot  dictate  to 
independent  contractors  on  state  work  the  hours  of 
labor  which  they  shall  prescribe  for  their  employes, 
where  there  was  nothing  in  the  character  of  the  work 
or  in  the  provisions  of  the  contract  to  justify  legislative 
interference.  In  Beardsley  v.  N.  Y.,  L.  E.  &  W.  R.  R. 
Co.  (162  N.  Y.  230,  56  N.  E.  488)  what  is  known  as  the 
"Mileage  Book  Act,"  which  required  railroad  companies 
to  issue  mileage  books  and  provided  a  penalty  for  re- 
fusal, was  unconstitutional  as  to  railroad  corporations  in 
existence  at  the  time  of  its  enactment,  because  it  was  an 
illegal  invasion  of  the  vested  property  rights  of  such  cor- 
porations. In  Schnaier  v.  Navarre  Hotel  &  I.  Co.  (182 
N.  Y.  88,  74  N.  E.  561,  108  Am.  St.  790,  70  L.  R.  A. 
722)  the  court  pronounced  invalid  a  statute  which  pro- 


119  NEW  YORK  ACT.  §57 

vided  that  it  should  be  unlawful  for  a  copartnership  to 
engage  in  the  business  of  employing  a  master  plumber 
unless  each  and  every  member  thereof  shall  have  regis- 
tered, after  examination  and  certification  by  an  exam- 
ining board  of  plumbers.  In  People  v.  Marcus  (185  N. 
Y.  257,  77  N.  E.  1073,  13  Am.  St.  902,  7  L.  R.  A.  (N. 
S.)  282),  it  was  held  that  a  section  of  the  Penal  Code 
was  void  which  provided,  in  substance,  that  no  person 
shall  make  the  employment  of  another,  or  the  contin- 
uance of  such  employment,  conditional  upon  the  em- 
ploye's not  joining  or  becoming  a  member  of  a  labor 
organization.  In  People  v.  Williams  (189  N.  Y.  131, 
134,  81  N.  E.  778,  121  Am.  St.  854,  12  L.  R.  A.  (N. 
S.)  1130),  this  court  condemned  that  part  of  the  Labor 
Law  which  prohibited  the  employment  of  an  adult  fe- 
male in  a  factory  before  six  o'clock  in  the  morning  or 
after  nine  o'clock  in  the  evening,  and  held  that  it  was 
not  a  proper  exercise  of  the  police  power,  since  it  had  no 
reference  to  the  number  of  hours  of  labor  or  to  the 
healthfulness  of  the  employment. 

We  have  yet  to  consider  certain  special  cases  upon 
which  the  exponents  of  this  new  law  have  planted  their 
faith  and  hope,  and  these  run  along  such  divergent  lines 
as  to  indicate,  more  clearly  than  anything  else,  the  ab- 
sence of  any  sound  legal  theory  upon  which  this  legisla- 
tion can  be  sustained.  These  cases  are  cited  in  support 
of  the  contention  that  the  common  law  and  our  statutes 
furnish  many  illustrations  of  legal  liability  without  fault, 
but  we  shall  endeavor  by  analysis  to  show  how  inappli- 
cable they  are  to  the  questions  now  before  the  court. 
The  case  of  Marvin  v.  Trout  (199  U.  S.  212,  224,  26  Sup. 
Ct.  31,  34,  50  L.  ed.  157)  arose  under  an  Ohio  statute 
which  subjected  premises  used  for  gambling  to  a  lien 
for  money  lost  in  gambling.  The  statute  forbade  gam- 
bling, and  the  court  very  properly  argued  that  "The 
power  of  the  state  to  enact  laws  to  suppress  gambling 


§  57       WORKMEN'S  COMPENSATION  AND  INSURANCE.       120 

cannot  be  doubted,  and,  as  a  means  to  that  end,  we  have 
no  doubt  of  its  power  to  provide  that  the  owner  of  the 
building  in  which  gambling  is  conducted,  who  know- 
ingly looks  on  and  permits  such  gambling,  can  be  made 
liable  in  his  property  which  is  thus  used,  to  pay  a  judg- 
ment against  those  who  won  the  money,  as  is  provided 
in  the  statute.  *  *  *  The  liability  of  the  owner  of 
the  building  to  make  good  the"  loss  sustained,  under  the 
circumstances  set  forth  in  the  statute,  was  clearly  part 
of  the  means  resorted  to  by  the  legislature  for  the  pur- 
pose of  suppressing  the  evil  in  the  interests  of  the  public 
morals  and  welfare."  (P.  224.)  A  more  cogent  illustra- 
tion of  the  undoubted  application  of  the  police  power 
cannot  be  found.  In  the  interest  of  good  morals  it  is  not 
merely  the  right  but  the  duty  of  the  state  to  suppress 
gambling,  and  the  case,  so  far  from  being  an  authority 
for  the  idea  of  liability  without  fault,  proceeds  directly 
upon  the  theory  that  the  owner  was  at  fault  in  permit- 
ting his  premises  to  be  used  for  an  illegal  purpose.  Then 
there  is  the  case  of  Bertholf  v.  O'Reilly  (74  N.  Y.  509, 
30  Am.  Rep.  323),  in  which  this  court  upheld  the  so- 
called  "Civil  Damage  act"  which  gave  to  every  husband, 
wife,  parent,  guardian,  employer  or  other  person  who 
should  be  injured  in  person  or  property  or  means  of 
support  by  any  intoxication  of  any  person,  a  right  of 
action  against  any  person  who  by  selling  or  giving  away 
intoxicating  liquors  caused  the  intoxication,  in  whole  or 
in  part,  and  subjecting  to  the  same  liability  any  person 
or  persons  owning  or  renting  or  permitting  the  occupa- 
tion of  any  building  or  premises  with  knowledge  that 
intoxicating  liquors  were  to  be  sold  thereon.  In  that 
case,  as  in  the  case  of  Marvin  v.  Trout  (supra),  the  con- 
trolling principle  was  that  the  state  had  the  right  to  pro- 
hibit and,  therefore,  the  absolute  right  to  control.  As 
Judge  Andrews  pertinently  observed,  "the  right  of  the 
state  to  regulate  the  traffic  in  intoxicating  liquors,  with- 


121  NEW  YORK  ACT.  §  5/ 

in  its  limits,  has  been  exercised  from  the  foundation  of 
the  government,  and  is  not  open  to  question.  The  state 
may  prescribe  the  persons  by  whom  and  the  conditions 
under  which  the  traffic  may  be  carried  on.  It  may  im- 
pose upon  those  who  act  under  its  license  such  liabili- 
ties and  penalties  as  in  its  judgment  are  proper  to  se- 
cure society  against  the  dangers  of  the  traffic  and  indi- 
viduals against  injuries  committed  by  intoxicated  per- 
sons under  the  influence  of  or  resulting  from  their  in- 
toxication.'' (P.  517.)  The  defendant  in  that  case,  it  is 
true,  was  not  the  licensee,  but  he  had  rented  his  prem- 
ises for  the  traffic  in  intoxicating  liquors  knowing  that 
they  were  to  be  so  used.  Upon  that  feature  of  the  case 
Judge  Andrews  said:  "The  liability  imposed  ^tipon  the 
landlord  for  the  acts  of  the  tenant  is  not  a  new  princi- 
ple in  legislation.  His  liability  only  arises  when  he  has 
consented  that  the  premises  may  be  used  as  a  place  for 
the  sale  of  liquors.  He  selects  the  tenant,  and  he  may, 
without  violating  any  constitutional  provision,  be  made 
responsible  for  the  tenant's  acts  connected,  with  the  use 
of  the  leased  property."  (P.  525.)  That  is  very  far  from 
being  a  case  of  liability  without  fault.  The  enactment 
of  the  "Civil  Damage  Act"  was  clearly  within  the  police 
power,  and  the  liability  imposed  did  not  deprive  either 
the  tenant  or  the  landlord  of  "due  process  of  law,"  for 
each  had  the  right  to  his  day  in  court  and  an  opportunity 
to  disprove  the  facts  upon  which  the  statutory  right  of 
action  depended.  Let  us  suppose,  however,  that  the 
statute  had  gone  so  far  as  to  provide  that  the  mere 
fact  of  selling  liquor  by  the  tenant,  or  the  mere  fact 
of  renting  the  premises  for  that  purpose  by  the  landlord, 
should  be  deemed  conclusive  proof  of  the  intoxication 
of  the  person  to  whom  the  liquor  was  sold,  and  of  the 
fact  that  the  person  bringing  the  suit  had  suffered  injury 
thereby,  so  that  the  person  sued  could  not  be  heard 
to  deny  or  disprove  his  responsibility  for  the  intoxi- 


§  57       WORKMEN'S  COMPENSATION  AND  INSURANCE.      122 

cation  or  the  injuries  resulting  therefrom.  Would 
that  be  "due  process  of  law?"  Suppose  that  the  Ohio 
statute,  which  was  also  clearly  within  the  general  scope 
of  the  police  power,  had  imposed  upon  the  landlord  a 
liability  for  money  lost  in  gambling  on  his  premises 
without  his  knowledge  of  the  purpose  for  which  the 
building  was  used,  and  had  declared  that  evidence  of  the 
mere  loss  of  the  money  should  be  sufficient  to  sustain  a 
judgment  against  him.  That  would  clearly  be  a  case  of 
liability  without  fault;  but  what  court,  controlled  by 
constitutional  limitations,  would  render  such  a  judg- 
ment? We  are  referred  to  the  case  of  Chicago,  Rock 
Island  &  Pacific  Railway  Co.  v.  Zernecke  (183  U.  S.  582, 
22  Sup.  Ct.  229,  46  L.  ed.  339)  as  an  illustration  of  liabil- 
ity without  fault.  We  think  that  case  has  no  analogy  to 
the  case  at  bar.  There  a  statute  of  Nebraska  imposed 
upon  railroad  corporations  a  liability  for  all  injuries  to 
passengers  except  when  occasioned  by  the  criminal  neg- 
ligence of  the  person  injured,  or  when  the  injury  was 
sustained  in  the  violation  of  some  express  rule  or  regu- 
lation of  the  corporation.  The  point  decided  in  that  case 
was  that  this  rule  of  liability  was  a  part  of  the  very  stat- 
ute under  which  the  corporation  took  its  charter.  The 
defendant  in  the  case  at  bar  is  a  railroad  corporation, 
and  as  such  may  be  subject  to  state  regulations  which 
would  not  apply  to  other  corporations  or  to  individuals, 
but  we  are  not  now  concerned  with  that  question,  since 
the  statute  before  us  has  reference  to  employers  in 
their  relations  with  their  employes,  and  not  to  railroads 
in  their  service  to  the  public. 

In  support  of  this  new  statute  we  are  also  asked  to 
consider  the  supposed  analogies  of  the  law  of  deodands; 
the  common-law  liability  of  the  husband  for  the  torts  of 
his  wife;  the  liability  of  the  master  for  the  acts  of  his 
servant,  and  the  liability  of  a  ship  for  the  care  and  main- 
tenance of  sick  or  disabled  seamen.  From  the  historical 


123  NEW  YORK  ACT.    '  §  57 

point  of  view,  these  subjects  might  be  very  entertain- 
ingly elaborated,  but  for  the  practical  purposes  of  this 
discussion  they  may  be  very  briefly  disposed  of.  If  the 
law  of  deodands  was  ever  imported  into  this  country  it 
has  never,  to  our  knowledge,  found  expression  in  a  sin- 
gle statute  or  judicial  decision.  It  was  one  of  those 
primitive  conceptions  of  justice  under  which  a  chattel 
which  caused  the  death  of  a  human  being  was  forfeited 
to  the  king.  We  are  unable  to  see  what  bearing  it  can 
have  upon  the  question  whether,  under  our  Constitu- 
tions, it  is  due  process  of  law  to  render  a  man  liable  for 
damages  when  he  has  been  guilty  of  no  fault.  Quite  as 
far-fetched  seems  the  argument  based  upon  the  com- 
mon-law liability  of  the  husband  for  the  torts  of  his  wife. 
Under  the  common-law  unity  of  husband  and  wife,  the 
latter  was  presumed  to  act  under  the  compulsion  of  the 
former;  and  the  wife  could  never  be  sued  alone.  As  the 
marriage  vested  the  husband  with  the  personal  prop- 
erty of  the  wife,  it  was  simply  logical  that  he  should  pay 
her  obligations.  So  with  the  liability  of  the  master  for 
the  acts  of  his  servant,  the  whole  theory  is  expressed  in 
the  maxim  qui  facit  per  alium  facit  per  se.  He  who  acts 
through  another  acts  himself.  How  do  these  illustra- 
tions support  the  principle  of  liability  without  fault? 
Could  a  husband  or  master  be  held  liable  under  the  com- 
mon law  when  the  wife  or  servant  had  been  guilty  of  no 
wrong?  Would  the  common  law  have  denied  to  the  hus- 
band or  master  the  right  to  provide  that  no  tort  had 
been  committed  by  the  wife  or  servant?  The  admiralty 
cases  of  The  Osceola  (189  U.  S.  158,  23  Sup.  Ct.  483,  47 
L.  ed.  760),  The  City  of  Alexandria  (17  Fed.  399), 
and  the  case  of  Scarff  v.  Metcalf  (107  N.  Y.  211,  13  N.  E. 
796,  1  Am.  St.  807)  seem  to  us  equally  inapplicable 
as  authorities  for  the  proposition  that  the  law  recognizes 
liability  without  fault.  It  is  common  knowledge  that 
the  contracts  and  services  of  seamen  are  exceptional  in 


§  57       WORKMEN'S  COMPENSATION  AND  INSURANCE.      124 

character.  A  seaman  engages  for  the  voyage.  He  is 
subject  to  physical  discipline,  and  exposed  to  hardships 
and  dangers  peculiar  to  the  sea.  He  is,  in  effect,  a  co- 
adventurer  with  the  master,  and  shares  in  the  risks  of 
shipwreck  and  capture,  often  losing  his  wages  by  cas- 
ualties which  do  not  affect  workmen  on  land.  For  these 
and  many  other  obvious  reasons  the  maritime  law  has 
wisely  and  benevolently  built  up  peculiar  rights  and 
privileges  for  the  protection  of  the  seaman  which  are 
not  recognizable  in  the  common  law.  When  he  is  sick 
or  injured  he  is  entitled  to  be  cared  for  at  the  expense 
of  the  ship,  and  for  the  failure  of  the  master  to  perform 
his  duty  in  this  regard,  the  ship  or  the  owner  is  liable. 
That  is  a  right  given  to  the  seaman,  and  a  duty  enjoined 
upon  the  master,  by  the  plainest  dictates  of  justice, 
which  arises  out  of  the  necessities  of  the  case ;  and,  be- 
cause of  the  reason  of  the  rule,  the  right  and  duty  cease 
when  the  contract  has  terminated  and  the  seaman  has 
been  returned  to  the  port  of  shipment  or  discharge,  or 
has  been  furnished  with  means  to  do  so.  But  beyond 
this  duty  on  the  part  of  the  master  or  owner,  there 
seems  to  be  no  liability  whatever  for  injuries  sustained 
by  the  seaman  in  the  course  of  his  work.  We  think  it 
may  confidently  be  asserted  that  within  the  whole  range 
of  the  maritime  law  there  will  be  found  no  rule  which 
renders  master,  owner  or  ship  liable  in  damages  for  an 
injury  sustained  by  the  seaman  without  fault  on  the  part 
of  any  one,  or  without  any  fault  except  his  own.  The 
case  of  Scarff  v.  Metcalf  (107  N.  Y.  211,  13  N.  E.  796,  1 
Am.  St.  807)  was  not  disposed  of  upon  any  such 
theory,  but  was  based  upon  the  neglect  of  the  master  to 
perform  the  duty  of  caring  for  the  injured  seaman  im- 
posed by  the  maritime  law.  The  legal  status  of  seamen 
is  clearly  illustrated  in  the  case  of  Robertson  v.  Baldwin 
(165  U.  S.  275,  17  Sup.  Ct.  326,  41  L.  ed.  715),  where  it 
was  held  that  compulsory  personal  service  of  a  seaman 


NEW  YORK  ACT.  §  57 

in  performance  of  his  contract  was  not  a  violation  of  the 
thirteenth  amendment  to  the  Federal  Constitution  for- 
bidding slavery  or  involuntary  servitude.  In  that  case 
the  learned  justice  who  wrote  for  the  court  suggested 
that  enforced  service  under  a  seaman's  contract  was  not 
involuntary  within  the  Constitution,  although  the  don- 
tract  would  not  be  enforced  by  the  courts.  But  in  the 
later  case  of  Clyatt  v.  United  States  (197  U.  S.  207,  25 
Sup.  Ct.  429,  49  L.  ed.  726)  it  was  held  that  peonage  or 
enforced  service,  whether  under  a  voluntary  contract  of 
.service  or  not,  was  involuntary  servitude  and  forbidden 
by  the  Constitution  in  all  cases  save  those  arising  out  of 
the  exceptional  relations  of  the  seaman  to  his  ship,  the 
child  to  its  parents,  and  the  apprentice  to  his  master.  In 
the  review  in  Robertson  v.  Baldwin  (supra),  of  the 
various  decisions  in  admiralty,  it  is  made  quite  clear  that 
the  courts  have  always  regarded  seamen  as  irresponsi- 
ble to  a  degree  which  makes  them  incapable  of  fully 
protecting  their  own  rights.  With  the  power  given  to 
the  employer  of  seamen  to  compel  specific  performance 
of  their  contracts,  there  are  imposed  certain  obligations 
unknown  to  any  other  relation.  It  is  a  relation  which 
rests  on  affirmative  law  and  not  on  natural  right.  We 
-can  find  no  analogy  between  a  case  arising  out  of  such  a 
relation  and  one  in  which  an  adult  of  sound  mind  and 
capable  of  freely  contracting  for  himself  voluntarily 
enters  upon  employment  from  which  he  is  at  liberty  to 
withdraw  whenever  he  will. 

Great  reliance  is  placed  upon  the  case  of  St.  Louis 
&  San  Francisco  Ry.  Co.  v.  Mathews  (165  U.  S.  1,  17 
Sup.  Ct.  243,  41  L.  ed.  611)  in  support  of  the  contention 
that  there  may  be  liability  where  there  is  no  delin- 
quency. That  was  an  action  brought  by  an  owner  of 
land  adjoining  the  defendant's  railroad  to  recover  dam- 
ages for  the  destruction  of  his  dwelling  house  and  other 
buildings,  caused  by  fire  which  spread  from  sparks  emit- 


§  57       WORKMEN'S  COMPENSATION  AND  INSURANCE.      126 

ted  by  the  defendant's  locomotives.  The  action  was 
brought  under  a  statute  of  the  state  of  Missouri  which 
provided  that  "each  railroad  corporation,  owning  or 
operating  a  railroad  in  this  state,  shall  be  responsible  in 
damages  to  every  person  and  corporation  whose  prop- 
erty may  be  injured  or  destroyed  by  fire  communicated, 
directly  or  indirectly,  by  locomotive  engines  in  use  upon 
the  railroad  owned  or  operated  by  such  railroad  corpora- 
tion; and  each  such  railroad  corporation  shall  have  an 
insurable  interest  in  the  property  upon  the  route  of  the 
railroad  owner  or  operated  by  it,  and  may  procure  in- 
surance thereon  in  its  own  behalf,  for  its  protection 
against  such  damages."  The  statute  was  upheld  as  being 
within  the  legislative  power  of  the  state.  That  decision 
is  amply  supported  by  a  number  of  reasons  which  have 
no  application  to  the  controversy  at  bar.  To  begin  with, 
the  Constitution  of  Missouri  contained  a  clause,  which 
was  in  force  when  the  railroad  company  obtained  its 
charter,  providing  that  "the  exercise  of  the  police  power 
of  the  state  shall  never  be  abridged,  or  so  construed  as 
to  permit  corporations  to  conduct  their  business  in  such 
manner  as  to  infringe  the  equal  rights  of  individuals,  or 
the  general  well-being  of  the  state."  (Missouri  Const., 
art.  12,  sec.  5.)  Another  ample  reason  is  found  in  the 
fact  that  railroads  alone  "have  the  privilege  of  taking  a 
narrow  strip  of  land  from  each  owner,  without  his  con- 
sent, along  the  route  selected  for  the  track,  and  of 
traversing  the  same  at  all  hours  of  the  day  and  night, 
and  at  all  seasons  whether  wet  or  dry,  with  locomotive 
engines  that  scatter  fire  along  the  margin  of  the  land 
not  taken,  thereby  subjecting  all  combustible  property 
to  extraordinary  hazard  of  loss."'(Grissell  v.  Housatonic 
R.  R.  Co.,  54  Conn.  447,  9  Atl.  137,  1  Am.  St.  138.) 
Then,  again,  "the  right  to  use  the  agencies  of  fire  and 
steam  in  the  movement  of  trains  is  derived  from  legisla- 
tion of  the  state;  and  it  certainly  cannot  be  denied  that 


I2/  NEW  YORK  ACT.  §  57 

it  is  for  the  state  to  determine  what  safeguards  must 
be  used  to  prevent  the  escape  of  fire,  and  to  define  the 
extent  of  the  liability  for  fires  resulting  from  the  opera- 
tion of  trains  by  means  of  steam  locomotives.  This  is  a 
matter  within  state  control."  (Hartford  Ins.  Co.  v.  Chi., 
Mil.  &  St.  Paul  Ry.  Co.,  62  Fed.  904.)  A  legisla- 
ture may,  if  it  chooses,  make  it  a  condition  of  the  right 
to  run  carriages  propelled  by  the  agency  of  fire,  that  the 
corporation  employing  them  shall  be  responsible  for  all 
injuries  which  fire  may  cause.  (Ingersoll  &  Quigley  v. 
Stockbridge  &  Pittsfield  R.  R.  Co.,  8  Allen  438;  Grand 
Trunk  Ry.  'Co.  v.  Richardson,  9  U.  S.  454,  23  L.  ed  356.) 
And,  finally,  these  statutes  are  designed  to  protect  the 
rights  of  those  who  have  no  contractual  relations  to 
the  corporations  which  inflict  the  injury.  In  such  a  case, 
when  both  parties  are  equally  faultless,  the  legislature 
may  properly  consider  it  to  be  just  that  the  duty  of  in- 
suring private  property  against  loss  or  injury  caused  by 
the  use  of  the  dangerous  instruments  should  rest  upon 
the  railroad  company,  which  employs  the  instruments 
and  creates  the  peril  for  its  own  profit,  rather  than  upon 
the  owner  of  the  property  who  has  no  control  over  or 
interest  in  these  instruments.  Quite  aside  from  the  con- 
siderations which  support  such  a  statutory  liability 
against  railroad  corporations,  it  may  be  added  that  it  is 
in  no  sense  an  extension  of  the  rule  of  the  common  law 
to  modern  conditions,  but  in  reality  a  return  to  the  ori- 
ginal common-law  doctrine  under  which  every  person 
who  permitted  fire  started  by  him  to  escape  beyond  his 
house  or  close  was  liable  to  every  one  who  suffered  loss 
or  injury  thereby.  The  severity  of  that  early  English 
rule  was  moderated  by  numerous  statutes,  among  which 
are  6  Anne  and  14  Geo.  III.  As  to  these  two  last-men- 
tioned statutes  it  has  been  held  that  they  became  by- 
adoption  a  part  of  the  common  law  of  this  state  (Thomp- 
son's Negligence,  vol.  1,  p.  148  et  seq.,  notes  under  "Lia- 


I  57       WORKMEN'S  COMPENSATION  AND  INSURANCE.      128 

bility  for  Damages  by  Fire,"  and  Webb  v.  R.,  W.  &  O. 
R.  R.  Co.,  49  N.  Y.  420,  426,  10  Am.  Rep.  389),  under 
which  neither  individuals  nor  corporations  are  liable  for 
escaping  fire  unless  there  is  negligence.  (Clark  v.  Foot,  8 
Johns.  421;  Bennett  v.  Scutt,  18  Barb.  347,  349;  Stuart 
v.  Hawley,  22  Barb.  619,  621 ;  RadclifFs  Exrs.  v.  Mayor, 
etc.,  of  Brooklyn,  4  N.  Y.  195,  200,  53  Am.  Dec.  357;  Cal- 
kins v.  Barger,  44  Barb.  424;  Sheldon  v.  Hudson  R.  R. 
R.  Co.,  14  N.  Y.  219,  67  Am.  Dec.  155;  Steinweg  v.  Erie 
Ry.,  43  N.  Y.  123, 127,  3  Am.  Rep.  673.)  The  cited  cases 
arising  out  of  injuries  inflicted  by  animals  of  known 
dangerous  or  vicious  propensities,  and  the  liability  which 
has  often  been  imposed  for  the  maintenance  of  private 
nuisances,  we  shall  not  discuss,  for  we  think  they  are 
governed  by  well-settled  principles  which  clearly  have 
no  application  to  the  questions  now  before  us. 

In  the  addenda  to  the  instructive  brief  of  the  counsel 
for  the  commission  our  attention  is  called  to  three  de- 
cisions of  the  Federal  Supreme  Court  which  have  been 
'but  recently  decided  and  not  yet  officially  reported. 
(Noble  State  Bank  v.  Haskell,  219  U.  S.  104,  31  Sup.  Ct. 
186,  55  L.  ed.  112)  ;  Assaria  State  Bank  v.  Dolley,  219  U. 
S.  121,  31  Sup.  Ct.  189,  55  L.  ed.  123),  and  Engel  v. 
O'Malley,  219  U.  S.  128,  31  Sup.  Ct.  190,  55  L.  ed.  128.) 
These  cases,  it  is  contended,  strongly  support  the  valid- 
ity of  the  legislation  which  we  are  condemning  because, 
as  counsel  asserts,  they  go  directly  to  the  ultimate 
question:  "Is  the  act  an  unreasonable  regulation 
of  the  status  of  employment?"  We  have  tried  to 
make  it  clear  that  in  our  judgment  this  statute 
is  not  a  law  of  regulation.  It  contains  not  a  single  pro- 
vision which  can  be  said  to  make  for  the  safety,  health 
or  morals  of  the  employes  therein  specified,  nor  to  im- 
pose upon  the  enumerated  employers  any  duty  or  obli- 
gation designed  to  have  that  effect.  It  does  not  affect 
the  status  of  employment  at  all,  but  writes  into  the 


129  NEW  YORK  ACT.  §  57 

contract  between  the  employer  and  employe,  without 
the  consent  of  the  former,  a  liability  on  his  part  which 
never  existed  before  and  to  which  he  is  permitted  to  in- 
terpose practically  no  defense,  for  he  can  only  escape 
liability  when  the  employe  is  injured  through  his  own 
wilful  misconduct.  That  is  a  defense  which  needs  no 
legislative  sanction,  since  it  would  be  abhorrent  to  the 
most  primitive  notions  of  justice  to  permit  one  to  im- 
pose liability  for  his  wilfully  self-inflicted  injuries  upon 
another  who  is  wholly  free  from  responsibility  for  them. 
The  case  of  Engel  v.  O'Malley  (supra)  is  so  clearly  dis- 
tinguishable from  the  case  at  bar  that  we  need  only 
state  the  facts  to  mark  the  contrast.  The  Engel  case 
arose  under  a  New  York  statute  which  provides  that  in- 
dividuals and  firms  shall  not  engage  in  the  business  of 
receiving  deposits  for  safe-keeping  or  for  transmission, 
or  for  any  other  purpose,  or  in  the  business  of  banking, 
without  first  obtaining  from  the  state  comptroller  a  li- 
cense. The  same  statute  further  provides  that  appli- 
cants for  such  a  license  must  pay  a  prescribed  fee,  give 
bonds  and  submit  to  other  restrictions.  We  have  already 
passed  upon  the  constitutionality  of  certain  parts  of 
that  statute  (Laws  1907,  ch.  185)  in  Musco  v.  United 
Surety  Co.  (196  N.  Y.  459,  465,  90  N.  E.  171,  173,  134 
Am.  St.  851),  which  was  an  action  upon  a  bond 
given  under  it,  and  have  held  that  "the  regulation  of  the 
business  of  receiving  deposits  is  plainly  within  the  power 
possessed  by  the  state  to  regulate  the  conduct  of  various 
pursuits  when  necessary  for  the  protection  of  the  pub- 
lic." (P.  465.)  The  portion  of  the  statute  under  consid- 
eration in  the  last  cited  case  was  plainly  directed  against 
an  obvious  evil  which  vitally  affected  the  public  welfare. 
The  city  of  New  York  is  the  gateway  through  which 
this  country  admits  each  year  thousands  of  poor  and 
ignorant  immigrants  who  deal  with  individuals  and  firms 
engaged  in  the  business  of  exchanging  domestic  for  for- 

9— BOYD  W  C 


§  57       WORKMEN'S  COMPENSATION  AND  INSURANCE.      130 

eign  money,  receiving  deposits  and  transmitting  remit- 
tances to  foreign  ports.  It  is  a  business  which  may,  and 
probably  does,  attract  some  irresponsible  and  mercen- 
ary adventurers.  A  law  designed  to  regulate  and  safe- 
guard such  a  business  in  a  way  which  affects  no  constitu- 
tional property  rights,  is  plainly  within  the  police  power 
of  the  state.  That  is  all  that  was  involved  in  the  Musco 
case,  and  that  is  the  extent  to  which  this  court  has  passed 
upon  the  constitutionality  of  the  New  York  statute 
(Laws  1907,  ch.  185).  It  need  hardly  be  argued  that  a 
law  passed  under  the  guise  of  such  a  purpose,  but  hav- 
ing in  fact  no  relation  to  it,  and  accomplishing  nothing 
to  make  the  business  of  receiving  deposits  more  safe, 
would  be  as  far  beyond  the  sphere  of  the  police  power  as 
an  amendment  to  the  Banking  Law  requiring  banks  and 
bankers  to  protect  their  customers,  to  whom  they  pay 
moneys,  against  thefts  or  other  physical  losses  thereof; 
or  an  amendment  to  the  Labor  Law  which  would  com- 
pel the  industrial  employers  to  give  each  employe  a  va- 
cation on  full  pay  during  two  months  of  every  year. 

As  to  the  cases  of  Noble  State  Bank  v.  Haskell  (219 
U.  S.  104,  31  Sup.  Ct.  186,  55  L.  ed.  112)  and  Assaria 
State  Bank  v.  Dolley  (219  U.  S.  121,  31  Sup.  Ct.  189,  55 
L.  ed.  123)  we  have  only  to  say  that  if  they  go  so  far  as 
to  hold  that  any  law,  whatever  its  effect,  may  be  upheld 
because  by  the  "prevailing  morality"  or  the  "strong  and 
preponderant  opinion"  it  is  deemed  "to  be  greatly  and 
immediately  necessary  to  the  public  welfare,"  we  cannot 
recognize  them  as  controlling  of  our  construction  of  our 
own  Constitution.  That  the  business  of  banking  in  the 
several  states  may  be  regulated  by  legislative  enactment 
is  too  obvious  for  discussion.  That  the  extent  to  which 
such  state  regulation  may  be  carried  must  depend  upon 
the  difference  in  constitutional  provisions  is  also  plain. 
How  far  these  late  decisions  of  the  Federal  Supreme 
Court  are  to  be  regarded  as  committing  that  tribunal 


NEW  YORK  ACT.  57 

to  the  doctrine  that  any  citizen  may  be  deprived  of  his 
private  property  for  the  public  welfare  we  are  not  pre- 
pared to  decide.  All  that  it  is  necessary  to  affirm  in  the 
case  before  us  is  that  in  our  view  of  the  Constitution  of 
our  state  the  liability  sought  to  be  imposed  upon  the 
employers  enumerated  in  the  statute  before  us  is  a  tak- 
ing of  property  without  due  process  of  law,  and  the 
statute  is,  therefore,  void. 

The  judgment  of  the  Appellate  Division  should  be 
reversed  and  judgment  directed  for  the  defendant,  with 
costs  in  all  courts. 

Cullen,  Ch.  J.,  Gray,  Haight,  Willard  Bartlett,  Chase 
and  Collin,  JJ.,  concur;  Cullen,  Ch.  J.,  also  files  an  opin- 
ion, with  whom  Willard,  Bartlett,  J.,  concurs. 

Judgment  reversed,  etc. 

A  concurring  opinion  was  written  by  Chief  Justice 
Cullen,  in  which  he  said: 

I  concede  that  the  legislature  may  abolish  the  rule 
of  fellow-servant  as  a  defense  to  an  action  by  employe 
against  the  employer.  Indeed,  we  have  decided  that  in 
upholding  the  so-called  Barnes  Act  (Schradin  v.  N.  Y. 
C.  &  H.  R.  R.  R.  Co.,  194  N.  Y.  534,  87  N.  E.  1126.)  I 
concede  that  the  legislature  may  also  abolish  as  a  de- 
fense the  rule  of  assumption  of  risk  and  that  of  contribu- 
tory negligence  unless  the  accident  proceed  from  the 
wilful  act  of  the  employe.  I  concede  that  in  a  work, 
occupation  or  business  of  such  a  nature  that  the  legisla- 
ture might  prohibit  its  pursuit  or  exercise  altogether, 
the  legislature  may  prescribe  terms  under  which  it  may 
be  carried  on.  Plainly,  this  litigation  does  not  present 
such  a  case.  The  legislature  could  not  revoke  the  fran- 
chise it  had  previously  given  to  the  defendant  to  oper- 
ate a  railroad.  (People  v.  O'Brien,  111  N.  Y.  1,  18  N.  E. 
692,  7  Am.  St.  68,  2  L.  R.  A.  255,  )  I  am  not  pre- 
pared to  deny  that  where  the  effects  of  the  work,  even 
though  prosecuted  carefully,  go  beyond  a  person's  own 


§  57       WORKMEN'S  COMPENSATION  AND  INSURANCE.      132 

property  and  injure  third  persons  in  no  way  connected 
therewith,  the  person  for  whose  account  the  work  is 
done  may  be  held  liable  for  injuries  occasioned  thereby. 
I  also  concede  the  most  plenary  power  in  the  legislature 
to  prescribe  all  reasonable  rules  for  the  conduct  of  the 
work  which  may  conduce  to  the  safety  and  health  of  per- 
sons employed  therein.  But  I  do  deny  that  a  person  em- 
ployed in  a  lawful  vocation,  the  effects  of  which  are  con- 
fined to  his  own  premises,  can  be  made  to  indemnify  an- 
other for  injury  received  in  the  work  unless  he  has  been 
in  some  respects  at  fault.  I  am  not  impressed  with  the 
argument  that  "the  common  law  imposed  upon  the 
employe  entire  responsibility  for  injuries  arising  out  of 
the  necessary  risks  or  dangers  of  the  employment.  The 
statute  before  us  merely  shifts  such  liability  upon  the 
employer."  It  is  the  physical  law  of  nature,  not  of  gov- 
ernment, that  imposes  upon  one  meeting  with  an  injury, 
the  suffering  occasioned  thereby.  Human  law  cannot 
change  that.  All  it  can  do  is  to  require  pecuniary  in- 
demnity to  the  party  injured,  and  I  know  of  no  princi- 
ple on  which  one  can  be  compelled  to  indemnify  an- 
other for  loss  unless  it  is  based  upon  contractual  obli- 
gation or  fault.  It  might  as  well  as  argued  in  support 
of  a  law  requiring  a  man  to  pay  his  neighbor's  debts, 
that  the  common  law  requires  each  man  to  pay  his  own 
debts,  and  the  statute  in  question  was  a  mere  modifica- 
tion of  the  common  law  so  as  to  require  each  to  pay 
his  neighbor's  debts.  It  is  urged  that  the  legislation 
before  us  can  be  upheld  on  the  decision  of  the  Supreme 
Court  of  the  United  States  in  Noble  State  Bank  v.  Has- 
kell  (219  U.  S.  104,  111,  31  Sup.  Ct.  186,  188,  55  L.  ed. 
112.)  In  support  of  the  claim  there  is  cited  from  the 
opinion  the  following:  "It  may  be  said  in  a  general  way 
that  the  police  power  extends  to  all  the  great  public 
needs.  (Camfield  v.  United  States,  167  U.  S.  518,  17  Sup. 
Ct.  864,  42  L.  ed.  260.)  It  may  be  put  forth  in  aid  of 


133  NEW  YORK  ACT.  §  57 

what  is  sanctioned  by  usage,  or  held  by  the  prevailing 
morality  or  strong  and  preponderant  opinion  to  be 
greatly  and  immediately  necessary  to  the  public  wel- 
fare." (P.  111.)  It  is  here  possible  that  the  doctrine  of 
these  two  sentences  would  justify  the  statute  be- 
fore us  and  possibly  any  legislation,  if  only  sup- 
ported by  a  sufficient  popular  demand,  but  it  is 
both  unfair  and  unsafe  to  exempt  fragmentary  sen- 
tences from  the  opinion  of  a  court  and  interpret 
them  apart  from  the  context  of  the  whole  opin- 
ion. However  that  may  be,  the  decision  in  the  Noble 
Bank  case  is  not  controlling  upon  this  court  in  the  con- 
struction of  the  Constitution  of  our  own  state,  and  I  am 
not  disposed  to  accept  it,  at  least,  until  it  has  received 
the  approval  of  a  majority  of  the  court.  I  concur  with 
Judge  Werner  that  the  act,  as  applicable  to  the  case  be- 
fore us,  cannot  be  considered  as  an  exercise  of  the  power 
of  the  state  to  regulate  corporations.  The  act  is  gen- 
eral, not  confined  to  corporations,  and  even  if  it  were,  I 
think  its  effect  would  be  a  deprivation  of  property  not 
authorized  by  the  reserved  power  to  regulate. 

As  to  corporations  hereafter  formed,  the  question  is 
very  different.  The  franchise  to  be  a  corporation  is  not 
one  inherent  in  the  citizen,  but  proceeds  solely  from  the 
bounty  of  the  legislature,  and  for  that  reason  the  legisla- 
ture may  dictate  the  terms  on  which  it  will  be  granted 
and  require  the  acceptance  of  the  provisions  of  this  act 
as  a  condition  of  incorporation.  (Purdy  v.  Erie  R.  R. 
Co.,  162  N.  Y.  42,  56  N.  E.  508,  48  L.  R.  A.  669;  Minor 
v.  Erie  R.  R.  Co.,  171  N.  Y.  566,  64  N.  E.  454;  People 
ex  rel.  Schurz  v.  Cook,  110  N.  Y.  443,  18  N.  E.  113;  148 
U.  S.  397,  13  Sup.  Ct.  645,  37  L.  ed.  498;  Chicago,  R.  I. 
&  Pac.  R.  Co.  v.  Zernecke,  183  U.  S.  582,  22  Sup.  Ct.  229, 
46  L.  ed.  839.  Even  in  the  case  of  existing  corporations, 
the  corporate  existence  of  all  those  created  since  the 
Constitution  of  1846  may  be  revoked  by  the  legislature, 


§  58       WORKMEN'S  COMPENSATION  AND  INSURANCE.      134 

though  the  property  rights  of  such  corporations  and 
their  special  franchises  other  than  the  one  to  be  a  cor- 
poration, can  not  be  impaired.  (Const.,  art.  VIII,  §  1; 
Lord  v.  Equitable  Life  Assur.  Socy.,  194  N.  Y.  212,  87  N. 
E.  443,  22  L.  R.  A.  (N.  S.)  420.)  The  property  and  fran- 
chise would  have  to  be  managed  by  the  owners  as  part- 
ners or  tenants  in  common,  and  the  legislature  might  re- 
quire as  a  condition  of  the  continued  right  to  be  a  cor- 
poration that  before  the  expiration  of  a  reasonable 
period  the  provisions  of  the  statute  should  also  be  ac- 
cepted by  them.  They  are  in  the  condition  of  a  tenant  at 
will  who,  when  the  landlord  raises  the  rent,  must  either 
comply  with  his  terms  or,  after  the  expiration  of  a  rea- 
sonable time  prescribed  by  a  notice  to  quit,  surrender  his 
rights  under  the  lease.  But  individual  citizens,  following 
the  ordinary  vocation  of  life,  asking  no  favors  of  the  gov- 
ernment, whether  a  corporate  or  other  franchise,  but 
only  the  protection  of  life  and  property,  which  every 
government  owes  to  its  citizens,  and  guilty  of  no  fault, 
can  not  be  compelled  to  contribute  to  the  indemnity  of 
other  citizens  who,  by  misfortune  or  the  fault  of  them- 
selves or  others,  have  suffered  injuries,  except  by  the 
exercise  of  the  power  of  taxation  imposed  on  all,  at  least 
all  of  the  same  class,  for  the  maintenance  of  public  char- 
ity. Of  course,  I  am  not  now  referring  to  obligations 
springing  from  domestic  relations. 

Cullen,  Ch.  J.,  Gray,  Haight,  Willard,  Bartlett,  Chase 
and  Collin,  JJ.,  concur;  Cullen,  Ch.  J.,  also  files  an  opin- 
ion, with  whom  Willard,  Bartlett,  J.,  concurs. 

Judgment  reversed,  etc. 

§  58.  Argument  for  constitutionality  of  act. — The 
argument  of  former  President  Roosevelt,  the  Wain- 
wright  Commission,  The  Outlook  and  those  who  have 
contended  for  the  constitutionality  of  the  New  York 
Workmen's  Compensation  Law  is,  perhaps,  best  stated 


135  NEW  YORK  ACT.  §  58 

by  James  Parker  Hall,  Dean  of  the  University  of  Chi- 
cago Law  School.4  The  fundamental  ground  on  which 
the  New  York  Court  based  its  decision  against  the  con- 
stitutionality of  the  act  was  that  it  authorized  the  taking 
of  the  property  of  the  employer  "without  due  process  of 
law"  in  violation  of  Fourteenth  Amendment  to  the  Fed- 
eral constitution  and  a  similar  provision  in  the  constitu- 
tion of  the  state.  Professor  Hall  argues  that  the  act 
does  not  take  the  property  of  the  employer  "without  due 
process."  He  says: 

"Carriers  and  inkeepers  (not  protected  by  special 
contract)  are  liable  for  goods  destroyed  without  their 
fault;  the  possessors  of  animals  must  keep  them  from 
straying  at  their  peril;  the  husband  was  absolutely  liable 
for  the  torts  of  his  wife  and  the  master  for  those  of  his 
servant  (within  the  scope  of  his  authority),  no  matter 
how  carefully  the  servant  was  selected  and  instructed; 
the  person  who  had  custody  of  a  fire  was  liable  for  its 
spread,  regardless  of  fault  (until  the  rule  was  altered  by 
statute) ;  those  who  keep  dangerous  explosives  do  so  at 
their  peril;  the  ship  is  liable  for  the  care  of  sick  and  in- 
jured sailors;  persons  who  conduct  blasting  operations 
do  so  at  their  peril  as  regards  trespasses  caused  thereby; 
one  who  digs  in  his  land  is  absolutely  liable  for  changes 
thus  caused  in  the  surface  of  a  neighbor's  land,  no  mat- 
ter how  unforeseeable ;  a  landowner  must  keep  his  land 
free  from  nuisances,  even  those  created  there  by 
strangers  against  his  will  and  without  his  fault ;  in  some 
jurisdictions  one  who  brings  on  his  land  and  keeps  there 
anything  likely  to  escape  and  do  damage  (like  a  reser- 
voir of  water)  is  liable  therefor,  even  though  the  escape 
be  without  his  fault ;  and  one  who  diverts  the  flow  of  sur- 
face water  may  be  held  liable  if,  even  without  his  fault, 
his  neighbor  is  flooded  thereby.  In  addition  to  the 

4  Journal  of  Political  Economy,  Vol.  XIX,  No.  8,  October,  1911, 
pp.  698-700. 


§  58      WORKMEN'S  COMPENSATION  AND  INSURANCE.      136 

above,  which,  as  regards  the  defendant,  are  all  in  prin- 
ciple cases  of  accidental  injury  without  fault,  there  is  the 
great  class  of  injuries  caused  by  mistake,  without  fault, 
as  where  one  meddles  with  the  person  or  property  of  an- 
other, reasonably  and  in  good  faith  thinking  he  has  a 
right  to  do  so,  when  he  has  not.  No  fault  of  any  kind 
can  be  imputed  to  the  defendant,  but  he  is  everywhere 
held  liable. 

Statutes,  too,  have  not  infrequently  imposed  liabil- 
ities without  fault.  Owners  of  dogs  have  been  made 
absolutely  liable  for  damages  done  by  them;  drivers  of 
cattle  have  been  made  liable  for  injuries  to  roads;  rail- 
roads have  been  made  liable  for  the  unavoidable  escape 
of  fire;  it  has  been  said  carriers  could  be  made  abso- 
lutely liable  for  injuries  to  passengers  arising  from  the 
operation  of  railroads;  and  banks  have  been  compelled 
to  contribute  toward  each  other's  losses.  Several  state 
courts  have  held  unconstitutional  laws  making  railways 
absolutely  liable  for  stock  killed  on  the  track,  but  a  con- 
trary view  of  this  is  apparently  held  by  the  United 
States  Supreme  Court.  Similar  in  principle  seem  to  be 
the  important  classes  of  cases  where  persons  are  liable 
who,  though  wholly  without  fault,  fail  to  avoid  some 
condition  or  result  penalized  by  the  law.  Instances  are 
statutes  absolutely  requiring  milk  offered  for  sale  to 
meet  a  certain  test,  or  railroads  to  have  their  car 
couplings  in  a  safe  condition.  It  is  no  defense  that  a 
cow's  milk  unforeseeably  falls  below  the  test,  or  that  a 
coupling  unexpectedly  becomes  disabled  between  sta- 
tions. 

In  the  face  of  so  large  a  number  of  instances  of  liabil- 
ity without  fault  under  our  system  of  law,  it  can  not  be 
successfully  argued  that  a  statute  takes  property  with- 
out due  process  of  law  merely  because  it  imposes  a  new 
liability  of  this  character.  The  question  instead  must 
be  the  more  fundamental  one:  Does  the  statute  seek 


137  NEW  YORK  ACT.  §  58 

an  end  so  unreasonable  or  arbitrary  as  not  to  be  within 
the  legislative  discretion?  or,  Has  it  sought  a  legitimate 
end  by  similarly  unreasonable  or  arbitrary  means?  If 
these  questions  are  answered  in  the  negative,  and  the 
statute  violates  no  definite  or  historically  well-settled 
principles  of  private  right,  it  should  be  held  to  be  due 
process.  In  the  light  of  human  experience  during  the 
past  generation  throughout  the  civilized  industrial 
world,  can  a  statute  be  said  to  be  unreasonable  or  arbi- 
trary that  places  upon  the  person  conducting  a  hazard- 
ous business  the  risk  of  personal  injury  to  those  em- 
ployed in  it?  By  a  system  of  insurance  this  risk,  like 
those  from  fire,  will  at  once  be  spread  over  the  whole 
industry,  added  to  the  cost  of  its  product,  and  borne  by 
society,  which  also  gets  the  benefit  from  the  industry 
and  its  hazards. 

Some  of  the  illustrations  used  by  the  New  York 
court  in  argument,  if  meant  in  full  seriousness,  show  a 
failure  to  appreciate  the  principle  of  the  statute.  For 
instance,  the  court  says: 

"If  the  legislature  can  say  to  an  employer,  'You  must 
compensate  your  employe  for  an  injury  not  caused  by 
you  or  by  your  fault,'  why  can  it  not  go  farther  and  say 
to  the  man  of  wealth,  'You  have  more  property  than  you 
need  and  your  neighbor  is  so  poor  that  he  can  barely 
subsist ;  in  the  interest  of  natural  justice  you  must  divide 
with  your  neighbor  so  that  he  and  his  dependents  shall 
not  become  a  charge  upon  the  state?' " 

And  Chief  Justice  Cullen  suggests  that  a  law  might 
as  well  compel  a  man  to  pay  his  neighbor's  debts  as  to 
shift  to  him  the  risk  of  injury  to  men  employed  in  his 
hazardous  employment.  The  difference  between  mak- 
ing a  business  bear  its  own  inherent  risks,  and  making 
well-to-do  persons  divide  their  property  with  the  needy 
generally  or  assume  their  debts  is  sufficiently  obvious 


§  59       WORKMEN'S  COMPENSATION  AND  INSURANCE.      138 

even  to  the  lay  mind,  and  the  use  of  such  illustrations 
sensibly  weakens  an  opinion  already  unconvincing. 

It  is  impossible  to  believe  that  this  decision  will  stand 
as  the  final  interpretation  of  "due  process  of  law"  in 
American  constitutions  applicable  to  workingmen's 
compensation  acts.  As  the  United  States  Supreme 
Court  said  in  1898  regarding  the  meaning  of  this  consti- 
tutional provision, 

"In  view  of  the  fact  that  from  the  day  Magna  Charta 
was  signed  to  the  present  moment,  amendments  to  the 
structure  of  the  law  have  been  made  with  increasing  fre- 
quency, it  is  impossible  to  suppose  that  they  will  not  con- 
tinue, and  the  law  be  forced  to  adapt  itself  to  new  con- 
ditions of  society,  and  particularly  the  new  relations  be- 
tween employers  and  employes,  as  they  arise."5 

§  59.     Reasons  for  upholding  view  of  court. — The 

opinions  of  lawyers  and  publicists  who  espouse  the 
views  of  Professor  Hall,  and  contend  for  the  constitu- 
tionality of  the  New  York  compensation  act  are  bur- 
dened with  the  assumption  that  there  is  no  other  remedy 
which  is  adequate  and  available  and  which  the  Legisla- 
ture of  New  York  might  not  readily  adopt  and  at  the 
same  time  come  within  the  constitutional  limitation  of 
"due  process  of  law,"  and  be  sound  from  the  standpoint 
of  economics.  From  the  point  of  view  of  the  author, 
herein  lies  the  error  of  their  reasoning  and  the  wisdom 
of  the  constitutional  limitations  of  the  State  and  Federal 
constitutions,  and  the  wisdom  in  this  respect  of  the  opin- 
ion of  the  Supreme  Court  of  New  York. 

Good  laws  must  rest  ultimately  upon  sound  eco- 
nomic principles.  Such  a  remedy  is  compulsory  indus- 
trial insurance  for  workmen  which  has  been  in  operation 
throughout  continental  Europe  for  twenty-five  years 

5  Holden  v.  Hardy,  169  U.  S.  366,  387 :  In  this  connection  consult 
the  brief  of  Albert  P.  Thorn,  Report  of  Employer's  Liability  Com- 
mission of  the  United  States,  pt.  4,  pp.  1281-1301.  See  further  Hear- 
ings before  the  Employer's  Liability  and  Workmen's  Compensation 
Commission  pursuant  to  Public  Resolution,  U.  S.  No.  4-5. 


139  NEW  YORK  ACT.  §  59 

and  has  been  enacted  recently  in  Ohio,  Massachusetts 
and  Washington.  Compulsory  industrial  insurance 
laws  for  workmen, — state  or  mutual, — which  creates 
a  fund  through  the  exercise  of  the  taxing  power 
of  the  State  comes  within  the  constitutional  lim- 
itation of  "due  process  of  law."  The  states  have 
the  right  to  enact  such  laws  in  the  exercise  of 
their  police  powers  for  the  protection  of  the  health, 
safety  and  the  general  welfare  of  the  public.  By 
such  laws  the  right  of  the  employe  to  sue  and  of  the  em- 
ployer to  defend  with  his  common-law  defenses  are  ap- 
propriated. The  employes  are  given  in  return  compen- 
sation without  regard  to  negligence,  except  willful 
negligence,  and  the  employer  is  given  in  return  a  dis- 
charge from  liability  to  suit,  and  this,  without  regard  to 
fault  except  in  cases  of  malicious  fault. 

From  the  standpoint  of  economics,  it  must  be  kept 
in  mind  that  the  number  of  employers  who  employ  a  few 
men  and  who  have  a  small  amount  of  capital  and  all  of 
their  credit  invested  in  their  business  is  very  large.  For 
example,  in  Ohio,  50  per  cent,  of  the  employers  employ 
less  than  twenty  men.  Any  remedy  is  insufficient  which 
•does  not  furnish  the  employes  of  an  employer  of  small 
capital  and  of  a  few  men  as  adequate  and  certain  com- 
pensation as  it  would  the  employes  of  the  great  employer 
with  many  employes.  A  compensation  act  based  upon 
compulsory  industrial  insurance  which  provides  a  fund 
through  the  exercise  of  the  taxing  power  of  the  State 
gives  the  employer  of  a  few  men  as  equitable  protection 
and  his  employes  as  certain  and  adequate  compensation 
as  a  compensation  act  of  the  form  of  the  New  York  Act 
would  give  the  United  States  Steel  Corporation  and  its 
employes. 

Whether  a  law  is  constitutional  or  not,  depends  ulti- 
mately upon  the  fact  that  the  law  is  supported  by  the 
preponderating  will  of  the  people  of  the  state  whose 


§  59       WORKMEN'S  COMPENSATION  AND  INSURANCE.      140 

legislature  enacted  the  law,  and  whether  the  preponder- 
ating will  of  the  people  of  a  state  continues  to  support 
a  law  or  not  depends  upon  the  accuracy  with  which  the 
law  corrects  the  economic  inequality  which  the  people 
desire  to  have  cured. 

§  59a.  New  York  General  Liability  Law  with  com- 
pensation features.6 — At  the  time  the  New  York  Work- 
men's Compensation  Law  was  enacted  in  1910,  there  was 
in  existence  a  General  Liability  Law,6  which  contained 
many  compensation  features.  Though  the  compensa- 
tion features  of  this  statute  have  rarely  been  invoked,  the 
statute  has  not  been  repealed.  The  compensation  pro- 
visions of  this  statute  are  pointed  out  in  a  later  chapter 
on  Matters  Common  to  the  Various  American  Com- 
pensation Acts. 

6  Labor  Law,  1909,  art  14,  ch.  36 ;  Laws  1910,  amended  ch.  352. 


CHAPTER  VII. 

THE  MONTANA  WOEKMEN'S  INSURANCE  ACT. 

Sec.  Sec. 

60.  Its  nature  and   construction      62.  The  constitutionality  of  the 
by  the  Supreme  Court.  act. 

61.  Questions   presented    to   the      63.  The  effect  of  the  decision, 
court.  64.  Text  of  the  Montana  Insur- 
ance Act 

§  60.  Its  nature  and  construction  by  the  Su- 
preme Court. — The  Montana  Workmen's  Insurance  Act 
was  approved  March  4th,  1909,  and  went  into  effect 
October  1st,  1910,  and  its  benefits  were  to  commence 
four  months  thereafter.  This  act  provided  for  an  in- 
surance fund  for  the  benefit  of  "all  workmen,  laborers, 
and  employes  employed  in  and  around  any  coal  mines  or 
in  and  around  any  coal  washeries  in  which  coal  is  treated, 
except  office  employes,  superintendents  and  general 
managers,  in  case  of  accidents  occurring  in  the  course 
of  their  employment."  It  provided  for  a  co-operative 
fund,  contributions  thereto  being  made  by  employers 
on  the  basis  of  the  product  of  their  mines,  and  by  em- 
ployes on  the  basis  of  their  gross  earnings.  Fixed  sums 
were  to  be  paid  injured  persons  in  case  of  disability,  or 
to  their  surviving  dependents  in  case  the  injury  resulted 
in  death.  The  administration  of  the  law  was  committed 
to  the  auditor  of  the  State,  the  act  being  in  large  mea- 
sure automatic  in  its  operation.  While  obligatory  upon 
the  employer  and  his  workmen  to  make  the  payments 
prescribed  by  the  law,  injured  workmen  or  their  depend- 
ents might  ignore  the  provisions  of  the  law  and  sue  for 
damages  under  either  statute  or  common  law. 

The  constitutionality  of  the  act  was  finally  deter- 
mined by  the  Montana  Supreme  Court  in  Cunningham  v. 

141 


§  6 1       WORKMEN'S  COMPENSATION  AND  INSURANCE.      142 

Northwestern  Improvement  Co.1  in  1911.  In  the  lower 
court  the  right  of  the  auditor  to  collect  the  assessments 
provided  for  by  the  act  was  challenged  by  a  coal  mining 
company  and  it  refused  to  pay  the  sums  due,  where- 
upon the  auditor  brought  action  in  the  court  below  on 
an  agreed  statement  of  facts.  The  sole  question  in- 
volved was  the  constitutionality  of  the  act.  The  act 
was  sustained  by  the  district  court,  whereupon  the 
Northwestern  Improvement  Co.  appealed.  This  appeal 
resulted  in  the  reversal  of  the  judgment  of  the  lower 
court,  the  law  being  declared  unconstitutional  on  the 
ground  that,  in  permitting  employes  to  waive  their 
rights  under  the  insurance  act  and  sue  an  employer  who 
had  made  the  required  contributions  to  the  insurance 
fund,  there  was  not  given  to  the  employer  that  equal  pro- 
tection of  the  law  which  is  his  constitutional  right. 

§  61.  Questions  presented  to  the  court. — In  this 
case  the  questions  considered  were:  1.  Can  the  statute 
be  upheld  as  a  proper  exercise  of  the  police  power  of  the 
State?  2.  Is  the  act  an  example  of  class  legislation,  in 
that  it  singles  out  one  particularly  hazardous  employ- 
ment and  subjects  it  to  burdens  not  placed  upon  other 
extra-hazardous  employments  within  the  State?  3.  Is 
the  right  to  trial  by  jury  denied?  4.  Does  the  system 
and  machinery  provided  in  the  act  constitute  due  proc- 
ess of  law?  5.  Is  the  contention  that  the  provision  for 
payment  to  an  injured  employe  of  his  compensation  in 
a  lump  sum  defeats  the  purpose  of  the  act,  viewed  as  a 
police  regulation,  tenable?  6.  Is  the  argument  that  the 
act  does  not  differentiate  between  a  careful  and  a  care- 
less employer,  valid  ?  7.  Is  the  claim  that  the  act  lodges 
judicial  powers  in  the  State  auditor,  valid? 

§  62.    The  constitutionality  of  the  act. — The  court 
sustained  the  constitutionality  of  the  act  in  respect  to 
i  44  Mont.  108,  119  Pac.  554. 


143  MONTANA  ACT.  §  62 

all  of  the  foregoing  questions  except  the  one  raised  in 
the  fourth.  The  court,  in  answering  question  No.  4, 
held  the  act  unconstitutional  because  it  violated  the  "due 
process  of  law"  clause  of  the  constitution  of  the  United 
States.  The  court,  speaking  through  Mr.  Justice  Smith, 
said:  "It  is  therein  contended  that  in  reserving  to  the 
employe  his  right  to  an  action  at  law,  the  act  denies  to 
the  mine  operator  the  equal  protection  of  the  laws.  We 
have  decided  that  the  fact  that  actions  at  law  are  not 
abolished  by  the  act  is  not,  of  itself,  a  sufficient  reason 
for  declaring  the  statute  unconstitutional.  We  do  not 
believe  'that  for  the  purpose  of  determining  the  validity 
of  the  tax  it  is  necessary  to  find  an  immediate  specific 
benefit  to  the  individual  taxed/  as  is  maintained  by  some 
writers  on  the  subject.  We  think  we  have  already 
shown  that  if  the  act  can  be  justified  at  all  it  must  be 
upon  a  much  broader  principle  than  that  above  indi- 
cated. The  duty  to  make  payments  as  provided  in  sec- 
tion 2  is  absolute  and  unconditional.  It  can  be  enforced 
by  appropriate  action.  But  after  full  compliance  with 
the  terms  of  the  act,  the  employer  is  not  exonerated 
from  liability.  He  may  still  be  sued  and  compelled  to 
pay  damages  in  a  proper  case.  No  provision  is  made 
for  reimbursement  in  whole  or  in  part.  The  injured  em- 
ployes of  one  operator  may  all  resort  to  the  indemnity 
fund,  while  those  of  another  may  elect  to  appeal  to  the 
courts.  The  result  is  that  the  employer  against  whom 
an  action  is  -successfully  prosecuted,  is  compelled  to  pay 
twice.  He  has  fully  paid  his  assessments  under  the  act 
and  is  also  obliged  to  pay  damages.  This  fact  is  so  pal- 
pable as  to  be  needless  of  discussion.  The  act  in  this 
regard  is  not  only  inequitable  and  unjust,  but  clearly 
illegal  and  void  as  not  affording  to  such  employer  the 
equal  protection  of  the  laws.  The  Legislature  of  the 
State  of  Washington  guarded  against  this  contingency 
by  abolishing  all  actions  for  negligence.  (Ch.  74,  Session 


§  62      WORKMEN'S  COMPENSATION  AND  INSURANCE.       144 

Laws,  Washington,  1911.)  The  General  Assembly  of 
Maryland,  in  an  act  somewhat  similar  to  ours  (see  Laws 
of  Maryland,  1910,  ch.  153)  provided:  'If  any  suit  or  ac- 
tion be  brought  against  any  operator  for  or  in  respect 
of  any  injury  or  disability  received  by  an  employe  while 
in  the  discharge  of  his  duty  or  for  death  resulting  there- 
from *  *  *  and  said  operator  shall  appear  and  de- 
fend such  suit  or  action  and  a  judgment  shall  be  ren- 
dered against  him,  he  shall,  after  satisfying  said  judg- 
ment *  *  *  be  entitled  thereafter  to  deduct  from 
the  payments  required  to  be  made  by  him  *  *  *  a 
sum  equal  to  the  amount  of  said  judgment  and  costs.' 

"The  manner  in  which  the  equal  protection  of  the 
laws  shall  be  afforded  to  the  operator  is,  of  course,  for 
the  legislative  body  to  determine;  but  some  method 
must  assuredly  be  provided  to  protect  him  from  double 
payments.  The  act  in  its  present  form,  is,  in  this  re- 
gard, so  repugnant  to  all  ideas  of  equity  and  equality 
that  it  must,  we  think,  appeal  to  every  right-thinking 
person,  on  the  most  cursory  examination,  as  unjust.  It 
was  to  guard  against  such  legislation  as  this,  as  we 
apprehend,  that  the  framers  of  all  American  constitu- 
tions guaranteed  to  the  citizen  the  equal  protection  of 
the  laws." 

On  the  question  of  the  exercise  of  judicial  power  by  the 
auditor  it  was  observed  by  the  court: 

"The  fact  that  one  who  has  a  cause  of  action  at  com- 
mon law  may  elect  to  take  under  the  act,  and  the  suggestion 
that  as  to  him  the  auditor  may  be  called  upon  to  exercise  judi- 
cial power,  has  no  persuasive  force  when  we  consider  that 
such  election  is  altogether  voluntary,  and  he  may  resort  to 
the  courts  if  he  so  desires.  If  the  tax  provided  for  in  the  act 
can  legally  be  exacted  from  the  employer,  and,  as  is  the  case, 
the  acceptance  of  its  benefits  by  the  claimant  ipso  facto 
operates  to  release  the  employer  from  liability,  it  is  difficult 
to  see  how  the  latter  has  any  further  concern  in  the  matter 


I45:  MONTANA  ACT.  §  63 

of  distribution  of  the  fund  than  to  be  assured,  as  the  act 
provides  he  may  be,  that  it  is  not  paid  out  on  improper  or 
fraudulent  claims.  If  the  summary  method  of  administra- 
tion provided  may  not  be  resorted  to,  then  one  of  the  para- 
mount reasons  for  this  class  of  legislation  must  be  entirely 
eliminated  from  consideration.  It  seems  to  us  that  the 
opinion  of  the  Supreme  Court  of  the  United  States  *  *  * 
effectually  disposes  of  this  question,  as  well  as  of  some 
others  which  we  have  considered.  As  this  opinion  is  al- 
ready too  long,  however,  we  shall  content  ourselves  with  a 
single  quotation  therefrom:  'Though,  generally,  both  pub- 
lic and  private  wrongs  are  redressed  through  judicial  action, 
there  are  more  summary  extrajudicial  remedies  for  both.' ' 

§  63.  The  effect  of  the  decision. — This  decision  and 
the  earlier  New  York  decision2  establish  conclusively 
that  a  compulsory  workmen's  industrial  insurance  or 
workmen's  compensation  act  can  not  contain  a  provision 
that  will  give  the  injured  worker  the  option  of  suing  his 
employer  or  of  accepting  the  compensation  provided 
by  the  act. 

This  decision  leaves  Montana  without  an  operative 
workmen's  compensation  act.  However,  since  the  court 
sustained  all  of  the  provisions  of  the  law,  except  that 
giving  the  injured  worker  the  right  to  elect  to  sue  his 
employer  at  law  as  heretofore  or  to  accept  the  compen- 
sations given  him  under  the  compensation  act,  it  may 
be  cured  and  made  operative  by  an  amendment  which 
takes  away  this  option  to  sue  and  makes  it  obligatory 
upon  him  to  accept  the  compensations  made  and  pro- 
vided in  the  act. 

§  64.    Text  of  the  Montana  Insurance  Act. — The  act 

is  entitled  an  act  to  create  a  state  accident  insurance, 
and  total  permanent  disability  fund,  for  coal  miners  and 

2  Ives  v.  South  Buffalo  Railway  Co.,  201  N.  Y.  271,  94  N.  E.  431, 
34  L.  R.  A.  (N.  S.)  162  n. 

JO— BOTD  W  0 


§  64       WORKMEN'S  COMPENSATION  AND  INSURANCE.     146 

employes  at  coal  washers  in  the  state  of  Montana,  and 
providing  for  the  maintenance  and  management  of  the 
same;  extending  and  defining  the  duties  of  the  state 
auditor;  and  fixing  penalties  for  the  violation  of  its  pro- 
visions. It  provides: 

Section  121.  (Section  1.) — To  whom  act  applies. — 
All  workmen,  laborers,  and  employes  employed  in  and 
around  any  coal  mines,  or  in  and  around  any  coal  wash- 
ers in  which  coal  is  treated,  except  office  employes, 
superintendents  and  general  managers,  shall  be  insured 
in  accordance  with  the  provisions  of  this  act,  against  ac- 
cidents occurring  in  the  course  of  their  occupations. 

Section  122.  (Section  2.) — How  fund  raised — To 
whom  paid. — All  corporations,  partnerships,  associations 
or  persons  engaged  in  the  business  of  operating  any  coal 
mine  or  coal  washers  in  the  State  of  Montana  shall  pay 
to  the  auditor  of  the  State,  within  five  days  after  the 
monthly  wages  at  the  particular  mine  shall  have  been 
paid,  one  cent  per  ton  on  the  tonnage  of  coal  mined  and 
shipped,  or  sold  locally,  or  having  been  mined  is  ready 
for  shipment  or  sale  during  the  month  for  which  the 
wages  were  paid,  and  all  persons  mentioned  in  section  1 
employed  in  and  about  coal  mines  shall  allow  to  be  de- 
ducted from  their  gross  monthly  earnings  one  per  cent, 
thereof,  the  deduction  to  be  made  by  the  agent,  man- 
ager, or  foreman  of  any  corporation,  association,  part- 
nership, person  or  persons  engaged  in  the  business  of 
operating  any  coal  mine  or  coal  washer,  and  paid  to  the 
State  auditor  within  five  days  after  such  monthly  wages 
have  been  paid. 

Section  123.  (Section  3.) — Agents  to  report  tonnage 
mined — Contracts  waiving  effect  of  act  void. — The 
agent,  manager,  foreman  or  accountant  of  any  corpora- 
tion, partnership,  association,  person  or  persons  en- 
gaged in  mining  coal  in  Montana,  shall  on  or  before  the 


147  MONTANA  ACT.  §  64 

fifth  day  succeeding  the  pay  day  at  his  respective  mine, 
make  a  report  under  oath  to  the  State  auditor  as  to  the 
tonnage  mined  and  subject  to  the  payment  of  one  cent 
per  ton  thereon ;  and  stating  the  gross  earnings  subject 
to  the  one  per  cent,  deduction  as  provided  in  this  act,  ac- 
companied by  a  certified  check  in  full  for  the  amount  of 
the  tax  provided  in  section  2  of  this  act.  It  shall  be  un- 
lawful for  any  person,  employer,  employe,  corporation, 
partnership,  association  or  union  to  make  any  contract 
waiving,  avoiding  or  affecting  the  full  legal  effect  of  this 
act. 

Section  124.  (Section  4.) — Receipts  of  funds  by  audi- 
tor— Duties — Liabilities  of  sureties  of  State  treasurer — 
Interest. — It  is  hereby  made  the  duty  of  the  State  audi- 
tor to  receive  all  moneys  as  provided  for  in  this  act,  and 
to  send  the  proper  acknowledgment  to  the  person  mak- 
ing such  remittance.  The  auditor  shall  pay  all  moneys 
so  received  by  him  to  the  State  treasurer,  who  shall  keep 
such  sums  in  safe  custody  in  a  distinct  fund  to  be  known 
as  the  Employers'  and  Employes  Co-operative  Insurance 
and  Total  Permanent  Disability  Fund.  The  State  treas- 
urer must  invest  the  surplus  of  this  fund  in  safe  and  con- 
vertible state,  county  or  city  bonds  or  bonds  of  the 
United  States.  All  interest  accruing  from  such  invest- 
ments shall  be  accredited  to  this  insurance  fund.  The 
bond  of  the  State  treasurer  shall  be  liable  for  such 
funds,  and  it  shall  be  his  duty  to  keep  accurate  accounts 
of  the  receipts  and  disbursements  of  such  money. 

Section  125.  (Section  5.) — Payment  of  death  claims 
— To  whom — Duty  of  auditor — Personal  injuries — How 
compensation  paid. — The  auditor  of  State  shall  keep 
full  statistics  of  the  operation  of  this  function  of  his  de- 
partment in  the  event  of  the  death  by  accident  of  an  em- 
ploye" insured  un'der  this  act,  who  shall  have  come  to  his 
death  in  the  course  of  his  employment  and  by  causes 


§  64       WORKMEN'S  COMPENSATION  AND  INSURANCE.     148 

arising  therein.  The  auditor  of  State  upon  being  satis- 
fied by  adequate  evidence  of  such  death  shall  issue  a 
warrant  upon  the  State  treasurer  to  persons  dependent 
upon  the  deceased,  these  warrants  to  issue  in  the  follow- 
ing order:  (1)  To  surviving  wife  and  child,  or  children, 
in  equal  shares,  and  if  neither  wife  or  child,  or  children 
be  alive,  then,  (2)  to  surviving  parents  who  are  depen- 
dent, or  partially  so,  upon  the  deceased;  if  none,  then  (3) 
to  such  other  relatives  of  the  deceased  as  survive  him 
and  are  dependent  upon  him,  in  the  sum  of  three  thou- 
sand ($3,000)  dollars. 

A  workman  receiving  injuries  which  permanently  in- 
capacitate him  from  the  performance  of  work  shall  re- 
ceive a  compensation  monthly,  not  to  exceed  one  dollar 
($1.00)  a  day  for  each  working  day.  Compensation  for 
permanent  injury  shall  not  be  allowed  until  after  the 
expiration  of  twelve  weeks  from  the  time  such  injuries 
were  sustained,  provided  that  the  medical  practitioner 
examines  and  pronounces  the  injury  as  being  perman- 
ent, compensation  may  then  be  allowed  from  commence- 
ment of  disability.  The  auditor  of  State,  however,  may, 
when  in  his  judgment  he  deems  it  advisable,  use  so 
much  of  the  funds  as  is  necessary  in  procuring  a  medi- 
cal practitioner,  for  the  purpose  of  examination  or  treat- 
ment under  this  act,  for  such  injuries  as  herein  men- 
tioned compensation  shall  continue  during  disability,  or 
until  settlement  is  effected  as  provided  for  in  section  9 
of  this  act.  Total  or  permanent  disability  shall  consist  of 
the  loss  of  both  legs  or  both  arms,  the  total  loss  of  eye- 
sight or  paralysis,  or  other  conditions  incapacitating  him 
from  work,  caused  by  accident,  or  injuries  received  dur- 
ing employment  as  specified  by  this  act;  provided  that  if 
death,  as  a  result  of  the  injury,  ensues  at  a  period  not 
longer  than  one  year  from  date  of  accident  the  sum  of 
three  thousand  dollars  ($3,000.00)  shall  be  paid  the  de- 


149  MONTANA  ACT.  §  64 

ceased  workman's  dependents  as  hereinbefore  provided. 
The  representatives  of  a  foreigner,  except  the  widow  or 
dependent  children,  who  were  not  living  within  the 
country  at  the  time  of  the  accident,  shall  have  no  claim 
for  the  compensation  provided  for  in  this  act.  Such  for- 
eign person  shall  file  his  foreign  address,  if  married, 
with  the  officer  of  his  employer  with  whom  he  is 
employed  and  duplicate  thereof  with  the  State  auditor, 
giving  his  wife's  name  and  dependent  children,  and 
such  other  identification  as  may  be  required  by  the 
auditor  of  State.  Loss  of  any  limb,  or  eye,  caused  by 
accident  to  a  workman  while  employed  as  provided  for 
in  this  act,  shall  be  compensated  for  in  the  sum  of  one 
thousand  ($1,000.00)  dollars,  provided,  that  in  the  event 
there  shall  be  no  funds  available  in  the.  fund  to  pay  the 
auditor's  warrant  when  drawn,  the  same  shall  draw  in- 
terest out  of  the  fund  at  the  rate  of  ten  per  cent,  per 
annum  until  such  warrant  is  called  for  payment  by  the 
treasurer,  which  shall  be  as  soon  as  the  fund  is  sufficient 
to  pay  the  same  with  its  interest  then  due. 

Section  126.  (Section  6.) — Monthly  payments — Ap- 
plications for. — Where  a  workman  is  entitled  to  month- 
ly payments  under  this  act,  he  shall  file  with  the  auditor 
of  State  his  application  for  such,  together  with  a  certifi- 
cate from  the  county  physician  of  the  county  wherein  he 
resides,  attested  before  a  notary  public. 

Section  127.  (Section  7.) — Fraudulent  claims — Duty 
of  auditor. — If  any  person  or  persons,  company  or  cor- 
poration who  is  then  paying  into  this  insurance  fund 
shall  believe  that  any  person  or  persons  are  obtaining, 
or  have  made  application  to  obtain  benefits  hereunder 
improperly  or  fraudulently,  and  shall  file  his  written  re- 
quest that  such  person's  claim  be  investigated,  the  State 
auditor  must  upon  the  receipt  of  such  request,  request 
the  secretary  of  the  State  Board  of  Health  to  make  an 


§  64       WORKMEN'S  COMPENSATION  AND  INSURANCE.      150 

examination  for  the  purpose  of  this  act  and  his  certifi- 
cate as  to  the  condition  of  the  person  or  persons  with 
reference  to  their  rights  to  benefit  under  this  act  shall 
be  conclusive  evidence  as  to  his  condition. 

Section  128.  (Section  8.) — Claimant  refusing  to  sub- 
mit to  examination — Effect. — If  the  workman  refuses  to 
submit  himself  to  such  examination,  or  in  any  way  ob- 
structs the  same,  his  right  to  compensation  under  this 
act  shall  be  suspended  until  such  examination  takes 
place,  and  shall  absolutely  cease  unless  he  submits  him- 
self for  an  examination  within  one  month  after  being  re- 
quired to  do  so. 

Section  129.  (Section  9.) — Monthly  payments — Re- 
demption by  lump  sum — Amount. — Where  any  month- 
ly payment  has  -been  made  to  a  workman  for  any  period 
whatever,  the  liability  under  this  act,  may  on  the  appli- 
cation by,  or  on  behalf  of  the  workman,  be  redeemed  by 
the  payment  of  a  lump  sum,  which  in  no  instance  shall 
be  in  excess  of  the  amount  specified  as  death  indemnity, 
and  all  monthly  payments  made  prior  shall  be  deducted 
from  such  settlement. 

Section  130.  (Section  10.) — Annual  report  of  auditor 
— Plenary  power  to  adjust  claims. — The  auditor  of  State 
shall  report  in  January  of  each  year  to  the  Governor  of 
the  experience  and  business  of  this  function  of  his  de- 
partment, and  shall  have  plenary  power  to  determine 
all  disputed  cases  which  may  arise  in  its  administration 
not  herein  provided  for,  and  to  recommend  in  his  report 
the  rates  of  premiums  necessary  in  order  to  preserve 
such  fund,  and  shall  order  paid  such  indemnification  as 
herein  provided.  He  shall  have  power  to  define  the  in- 
surance provisions  of  this  act  by  regulations  not  incon- 
sistent therewith  and  shall  prescribe  the  character  of  the 
monthly  or  other  reports  required  of  the  parties  liable 
hereunder  and  the  character  of  the  proofs  of  deaths,  or 


MONTANA  ACT.  §  64 

to  total  permanent  disability,  and  shall  have  power  to 
make  all  other  orders  and  rules  necessary  to  carry  out 
the  true  intent  of  this  act. 

Section  131.  (Section  11.) — Release  of  employer — 
Benefits  exempted — Suit — Forfeiture  of  benefits. — No 
money  paid  or  payable  in  respect  of  insurance  or  month- 
ly compensation  under  this  act  shall  be  capable  of  being 
assigned,  charged,  taken  into  execution  or  attached,  nor 
shall  the  same  pass  to  any  other  person  by  operation  of 
law;  and  the  acceptance  of  pecuniary  benefit  under 
the  provisions  of  this  act  shall  operate  to  release  the 
person  or  persons,  corporations,  partnerships,  or  asso- 
ciations causing  such  injuries  or  death  for  which  bene- 
fits are  so  claimed,  who  shall  have  paid  the  assessment 
provided  in  section  2  of  this  act,  and  also  the  employer, 
officers  and  agents  thereof  from  all  liability  and  claim 
arising  from  such  injuries  or  death.  The  commence- 
ment of  a  suit  to  recover  for  such  injuries  or  death  shall 
operate  as  a  forfeiture  of  the  right  to  benefit  under  this 
act. 

Section  132.  (Section  12.) — Violations  of  provisions 
of  act — Penalties. — A  manager,  agent,  foreman,  ac- 
countant, person  or  persons  who  represent  any  corpora- 
tion, partnership,  association,  person  or  persons,  en- 
gaged in  the  mining  or  managing  of  any  coal  mines  or 
coal  washers  in  Montana,  or  person  or  persons  liable  for 
the  payments  herein  provided  for  who  shall  violate  the 
intent  of  this  act  by  inaccurate  reports  of  tonnage  of 
coal  produced  by  them,  or  the  earnings  of  employes  in 
their  employ  or  who  in  any  manner  hinders  or  obstructs 
the  auditor  of  State  in  ascertaining  facts  bearing  upon 
any  case  provided  for  in  this  act  or  who  may  refuse  cor- 
rectly to  make  out  such  reports  as  are  required  by  this 
act,  or  as  requested  by  the  auditor  of  State,  or  submit 
to  its  provisions,  when  liable  therefore,  or  who  shall 


152      WORKMEN'S  COMPENSATION  AND  INSURANCE.      §  64 

fraudulently  obtain  benefits  hereunder  shall  be  fined  for 
each  offense  the  sum  of  not  less  than  one  hundred 
($100.00)  dollars  nor  more  than  five  hundred  ($500.00) 
dollars  and  imprisonment  in  the  county  jail  for  a  period 
of  not  less  than  one  month  nor  more  than  six  months, 
or  by  both  such  fine  and  imprisonment.  The  proceeds 
of  all  fines  shall  be  forwarded  to  the  State  treasurer  and 
by  him  credited  to  the  insurance  fund. 


CHAPTER  VIII. 


AN  ANALYSIS  OF  THE  PRINCIPLES  OF  THE  LEGAL  BASIS 
OF  COMPULSORY  INSURANCE  AND  COMPENSATION  LAWS. 


Sec.  Sec 

65.  Introductory.  81. 

66.  The  nature  and  remedial  pro- 

visions of  insurance  laws.      82. 

67.  Nature  of  the  obligation  im- 

posed. 83. 

68.  Nature  of  the  obligation  im- 

posed— German  view. 

69.  The  relationship  between  em- 

ployer and  employe  under  84. 
common-law  and  liability  85. 
acts. 

70.  The  relationship  between  em- 

ployer and  employe  under     86. 
insurance    and    compensa- 
tion acts.  87. 

71.  Validity    as    to    employer — 

Deprivation  of  defenses.          88. 

72.  Validity  as  to  employe. 

73.  Validity     as     to     employe —      89. 

Vested  rights  in  remedies 
withdrawn.  90. 

74.  Validity    as   to    the    State- 

Public  interest. 

75.  The  problem  of  industrial  in-      91. 

surance. 

76.  Whether  these  laws  infringe 

constitutional  limitations. 

77.  Insurance     acts     sustainable      92. 

against  constitutional  ob- 
jections under  analogous 
decisions.  93. 

78.  Analogous     decisions — Appli- 

cation to  insurance  acts. 

79.  Analogous      decisions — Bank      94. 

depositors'  guarantee  acts. 

80.  Analogous    decisions — Sheep- 

dog fund  cases. 


Analogous  decisions — Whis- 
ky cure  cases. 

Analogous  decisions — Farm- 
er's fund  cases. 

These  laws  an  exercise  of 
taxing  power — Attributes 
and  limitations  of  taxing 
power. 

Subjects  of  taxation. 

Similarity  of  attributes  of 
general  taxation  and  emi- 
nent domain. 

Necessity  that  purpose  of  tax 
be  a  public  purpose. 

The  public  purpose  for  which 
taxes  may  be  levied. 

Public  purpose  determined 
by  Legislature. 

Necessity  of  benefit  as  condi- 
tion to  right  to  tax. 

Necessity  of  return  of  benefit 
to  one  paying  to  special 
fund. 

Whether  conditions  of  equal- 
ity and  uniformity  are  sat- 
isfied in  insurance  and 
compensation  acts. 

Whether  contract  clauses  of 
constitutions  are  violated — 
Uniform  operation  of  laws. 

Insurance  and  compensation 
laws  a  proper  exercise  of 
police  powers. 

Whether  laws  open  to  objec- 
tion of  lack  of  uniformity 
of  operation  and  equality 
of  protection  —  Classifica- 
tion. 


153 


§  65       WORKMEN'S  COMPENSATION  AND  INSURANCE.      154 

Sec.  Sec. 

95.  Legislature  in  its  enactments  compensation  acts  wheth- 

liniited  only  by  State  Fed-  er  executive  or  judicial — 

eral  constitutions.  Due  process. 

36.  Nature  of  administration  of  98.  Deprivation  of  right  to  trial 
compensation  acts.  by  jury. 

97.  Nature  of  administration  of  99.  Whether  act  may  be  optional. 

§  65.  Introductory. — It  is  the  purpose  of  this  chap- 
ter to  present  and  discuss  the  objections  most  frequently 
urged  against  insurance  and  compensation  laws  when 
their  validity  is  called  in  question  in  courts  of  law.1 

§  66.  The  nature  and  remedial  provisions  of  insur- 
ance laws. — Workmen's  insurance  acts  greatly  resem- 
ble each  other  in  their  provisions.  The  Ohio  act,  which 
may  be  taken  as  a  type  of  these  laws,  provides: 

(1)  That  all  workmen  injured  shall  be  compen- 
sated at  the  rate  of  66  2-3  per  cent  of  his  loss  of  wages 
for  not  longer  than  300  weeks,  and  not  more  than  $12 
per  week;  in  case  of  death  where  there  are  dependents, 
the  compensation  shall  not  be  less  than  $1,500  nor  ex- 
ceed $3,400,  plus  doctor  bills  not  to  exceed  $200 
and  funeral  expenses  to  a  maximum  amount  of  $150; 
and  in  no  case  shall  the  compensation  for  any 
injury  exceed  $3,400,  except  in  the  case  of  total 
disability.  (2)  That  any  employer  of  five  or  more 
persons  shall  pay  monthly  into  the  state  fund,  the 
premium  based  upon  the  pay  roll  and  hazard  of  his 
business,  sufficient  to  pay  his  pro  rata  share  of  the  com- 
pensation awarded  to  workmen  against  the  fund.  (3) 
That  every  employer  of  five  or  more  persons  who  fails 
to  pay  said  premiums  shall  not  avail  himself  of  any  of 

1  The  matter  for  this  chapter  is  largely  founded  on  the  brief 
used  by  the  author  in  his  presentation  of  the  case  of  the  Ohio  In- 
dustrial Insurance  law  in  behalf  of  the  State  before  the  Ohio  Su- 
preme Court.  It  is  thought  to  cover  all  questions  that  have  been 
raised  against  these  laws  in  all  the  states  where  their  validity  has 
been  litigated. 


155  LEGAL  BASIS  OF  LAWS.  §  6/ 

the  so-called  common-law  defenses  in  case  he  is  sued 
by  a  workman  who  is  injured  while  in  his  employ.  (4) 
That  every  workman  must  accept  the  compensation 
provided  by  the  act,  in  lieu  of  all  rights  and  remedies 
heretofore  existing,  excepting  the  case  where  he  may 
be  denied  any  relief  whatever,  or  where  he  may  be  in- 
jured through  a  willful  act  of  the  employer,  or  through 
the  employer's  violation  of  a  statute  or  ordinance,  in 
which  case  he  may  elect  to  sue  his  employer  at  law  or 
take  under  the  compensation  act.  (5)  That  in  case  a 
workman,  covered  by  the  act,  is  totally  disabled  he  shall 
be  compensated  at  the  rate  of  66  2-3  per  cent  of  his 
average  weekly  wage,  in  no  case  at  less  than  $5  per 
week,  nor  at  more  than  $12  per  week,  and  the  compen- 
sation shall  be  paid  as  long  as  total  disability  lasts. 

§  67.  Nature  of  the  obligation  imposed. — The  rela- 
tion imposed  by  these  laws  is  purely  economic  in  char- 
acter as  distinguished  from  the  creation  of  a  new  right 
in  the  employe  sounding  in  tort.  The  new  obligation 
of  the  employer  to  his  employes  is  rather  a  wage  obli- 
gation in  the  nature  of  an  undertaking  thrust  upon  the 
employer,  as  a  part  of  the  contract  of  employment,  to 
become  a  party  to  an  insurance  policy  created  by  law 
and  to  be  entered  into  as  additional  consideration  for 
services  rendered  by  the  employe.  The  obligation  falls 
within  the  domain  of  contract  and  thus  involves  a  sphere 
of  constitutional  law  pertaining  to  the  subject  of  the 
regulation  of  contracts. 

The  true  theory  in  all  cases  is  that  the  compensa- 
tion is  in  fact  a  tax  levied  by  the  state,  both  upon  the 
employer  and  employes,  and  accepted  by  the  employe 
class  for  the  public  welfare.  This  is  necessarily  so,  for 
were  the  new  obligation  of  the  employer  deemed  to  be 
created  with  the  sole  object  of  establishing  in  the  em- 
ploye a  new  private  right  and  remedy  in  substitution  of 


§  67       WORKMEN'S  COMPENSATION  AND  INSURANCE.      156- 

his  former  right  to  sue  in  tort  for  damages,  then  an  in- 
dustrial insurance  law  would  be  as  unfair  to  the  em- 
ploye as  to  the  employer.  This  proposition  is  true,  be- 
cause in  lieu  of  a  possible  opportunity  formerly  be- 
longing to  the  injured  employe  to  be  made  whole  in  a 
sum  for  damages  fully  commensurate  with  his  peculiar 
loss,  he  would  be  compelled,  under  an  insurance  or 
compensation  act  to  accept  a  stipulated  amount  admit- 
tedly having  no  relation  to  his  injury,  but  measured  on 
the  basis  of  his  relative  economic  position  in  the  com- 
munity, viz. : — the  amount  of  his  wage.  This  is  not  a 
just  basis  to  compensate  the  employe  for  his  injury,  if 
his  new  right  is  to  be  classified  in  the  same  category  in 
which  his  old  right  belongs,  viz. : — a  means  to  redress  a 
private  wrong.  The  reason  for  such  a  law  must  be  to 
require  the  employe  to  accept,  against  his  former  pre- 
carious right  to  adequate  damages,  the  entirety,  not  only 
for  himself,  but  also  for  all  members  of  his  class,  of 
receiving  in  case  of  injury,  a  stipulated  sum  computed 
not  independently  as  to  each  party  injured  on  the  basis 
of  loss  peculiar  to  his  own  personal  injury  but  relatively 
as  to  all  in  accordance  with  their  respective  earning 
capacities.  Hence  its  sole  justification  must  be  the 
public  welfare,  and  whatever  its  form  be  it  must  in 
substance  result  as  to  the  parties  involved  in  the  arbi- 
trary levying  and  administration  of  a  tax  fund. 

On  the  above  theory  it  is  argued  that  the  positions- 
of  the  employer  and  employe  should  be  so  altered  that 
no  new  statutory  privity  of  relationship  be  created  be- 
tween them,  as  was  the  case  under  the  New  York  law,2 
but  rather  that  each  be  required  independent  of  the 
other  to  perform  a  new  duty  toward  the  state,  namely, 
the  employer  and  employe,  each,  by  paying  an  adequate 

2  Ives  v.  South  Buffalo  R.  Co.,  201  N.  T.  271,  94  N.  E.  431,  34  L, 
R.  A.  (N.  S)  162n. 


157  LEGAL  BASIS  OF  LAWS.  §  67 

tax  to  the  state,  and  the  employe  by  surrendering  a 
chose  in  action  to  the  state;  that  these  respective  duties, 
however,  can  be  constitutionally  required  of  each  only 
upon  some  direct  compensatory  return  of  an  economic 
-character  moving  to  each.  Distinction  is  here  made 
between  a  law  (for  instance  the  New  York  statute) 
such  as  gives  in  fact  a  right  in  A  to  appropriate  directly 
by  new  right  and  remedy  the  property  of  B  and  a  law 
which  leaves  A  and  B  in  respect  of  their  personal  rela- 
tions as  they  were  before,  but  requires  each  for  the 
needs  of  the  public  welfare,  and  in  exchange  for  speci- 
fic benefits  respectively  received,  to  surrender  to  the 
:State  certain  rights  and  likewise  to  look  to  a  state 
.agency  alone  for  the  returning  benefits. 

Another  limitation  also  inheres  in  this  theory  of  the 
.appropriation  of  the  property  rights  of  the  two  classes 
involved,  namely,  that  since  the  tax  is  not  levied  on  all 
in  the  state  but  that  certain  classes  of  citizens  are  alone 
selected  a  corresponding  benefit  or  return  must  be 
traced  to  them  for  their  property  and  rights  to  be  so 
appropriated.  This  constitutional  limitation  requires 
that  any  scheme  of  industrial  insurance  or  work- 
men's compensation  shall  be  what  it  purports  to 
be,  namely,  an  actual  readjustment  of  the  social  rela- 
tions of  the  classes  involved  in  it  by  making  such  scheme 
a  substitute  for  and  exclusive  of  all  other  present  meth- 
ods of  protecting  personal  injuries;  for  if  there  exist  in 
any  plan  of  compensation  the  recognition  of  the  right 
•of  the  employe  to  either  exercise  his  option  to  sue  at 
law  for  personal  injuries,  or  to  take  his  insurance,  by 
this  very  token  is  it  declared  that  the  intention  of  such 
a  law  is  not  to  bring  about  such  an  economic  reform, 
for  still  would  there  exist  all  the  evils  now  inherent  in 
ihe  present  method  of  redressing  personal  injuries;  in 
consequence  such  a  plan  would  disclose,  as  was  sug- 
gested by  the  New  York  Court  of  Appeals  in  the  Ives 


§  68       WORKMEN'S  COMPENSATION  AND  INSURANCE.      158 

case,3  but  the  creation  of  a  new  remedy  in  the  employe, 
additional  to  those  now  vested  in  him  and  unconstitu- 
tional in  character,  to  redress  a  private  wrong.  The 
very  essence  of  any  scheme  of  industrial  insurance  or 
workmen's  compensation  to  be  constitutional  requires 
that  it  be  exclusive  in  character.  The  tax  levied  must 
be  for  a  public  purpose  and  the  act  to  be  valid  must  be  a 
proper  exercise  of  the  police  power. 

Upon  the  assumption  that  such  taxation  would  be 
for  a  public  purpose,  the  brief  then  considers  the  limi- 
tations prescribed  by  the  Seventh  Amendment,  being" 
that  provision  of  the  Constitution  which  preserves  the 
right  of  trial  by  jury  in  suits  at  common  law.  All  at- 
tempts to  demonstrate  that  in  so  far  as  a  state  agency  is 
concerned  any  controversies  arising  between  such 
agency  and  any  of  the  parties  of  the  tax  or  as  to  the 
distribution  of  the  same,  would  not  fall  within  the  scope 
of  the  seventh  amendment  and  may  therefore  be  ad- 
judicated by  such  statutory  remedy  or  summary  pro- 
cedure as  the  state  may  prescribe. 

§  68.  Nature  of  the  obligation  imposed. — German 
view. — The  American  insurance  acts  are  adaptations  of 
the  German  industrial  insurance  law  against  accidents,, 
enacted  in  1884,  which  all  European  countries  have 
adopted  in  a  more  or  less  modified  form.  Dr.  Laband, 
in  analyzing  industrial  insurance  legislation  of  Ger- 
many and  other  European  countries,  uses  language 
which  is  equally  applicable  to  the  American  acts.4 

He  says:  "The  Imperial  legislation  starts  from  this 
idea — that  the  undertaker  of  an  enterprise  who  em- 
ploys workmen  in  order  to  appropriate  to  himself  the 
economic  value  of  the  fruits  of  their  labor  owes  them 
not  only  the  agreed  wages  for  this  labor,  but  ought 

3  Ives  v.  South  Buffalo  R.  Co.,  201  N.  Y.  271,  94  N.  E.  431,  34  L, 
R.  A.  (N.  S.)  162n. 

4  See  Droit  Public  de  1' Imperial  Allemand,  IV,  12. 


159  LEGAL  BASIS  OF  LAWS.  §  69 

also  to  bear  with  them  the  risks  of  accident  resulting 
from  this  labor.  This  conception  has  not  taken  the 
shape  of  a  principle  of  private  law  which  governs  the 
relations  resulting,  in  a  judicial  sense,  from  the  labor 
contract;  it  has  become  one  of  the  tasks  laid  upon  the 
state  to  take  care  of  the  victim  of  an  industrial  accident, 
or  of  those  he  leaves  behind  him;  and  this  task  is  ac- 
complished with  the  means  and  according  to  the  forms 
dictated  by  public  law.  The  right  of  the  workman  to 
the  solicitude  of  the  state  is  therefore  wholly  inde- 
pendent of  an  agreement  relating  to  his  work  and  the 
clauses  it  contains ;  he  enjoys  this  right  even  when  there 
is  no  agreement  of  this  sort  and  this  convention  can 
neither  modify  this  or  deprive  him  of  it.  So,  this  right 
is  not  founded  on  a  fault  committed  by  the  master  or 
any  of  his  employes,  and  even  a  fault  of  the  workman 
does  not  affect  it  at  all  unless  he  has  intentionally 
caused  the  accident.  The  obligation  to  aid  the  work- 
man is  not  a  legal  obligation,  or  what  is  called  a  'state 
obligation'  of  the  master  towards  his  workmen,  for 
master  and  workmen  are  not  set  against  one  another 
like  debtor  and  creditor,  and  they  are  powerless  to  vary 
the  right  of  one  to  aids  and  the  obligations  of  the  other 
to  give  them.  The  workmen  or  their  survivors  receive 
the  aids  which  come  to  them  by  an  intermediary  that 
the  Empire  or  the  State  has  delegated  to  perform  this 
duty,  an  intermediary  who  has  with  them  no  private 
legal  relation,  who  simply  performs  a  public  adminis- 
trative function,  confided  to  him  by  imperial  order, 
when  he  determines  the  indemnity  to  be  given  to  the 
workmen  or  effects  its  payment." 

§  69.  The  relationship  between  employer  and  em- 
ploye under  common  law  and  modern  liability  acts. — 
There  is  this  distinction  between  the  legal  principles 
applicable  to  the  common  law  of  torts  and  the  more  re- 
cent employer's  liability  acts  and  those  applicable  to 


§  70       WORKMEN'S  COMPENSATION  AND  INSURANCE.      160 

industrial  insurance  and  compensation  acts.  The  body 
of  law  applicable  to  the  former  pertains  entirely  to  the 
redress  of  private  wrongs.  The  liability  results  in  the 
payment  of  damages  to  the  employe  intended  to  be 
commensurate  with  and  to  reimburse  him  for  the  injury 
suffered.  The  sole  object  of  laws  of  this  form  is  to  regu- 
late private  rights,  to  readjust  the  relationship  between 
individuals  and  to  restore  the  parity  presumptively 
existing  between  them. 

§  70.  The  relationship  between  employer  and  em- 
ploye under  insurance  and  compensation  acts. — The  ob- 
ligations of  industrial  insurance  and  workmen's  com- 
pensation acts  accrue  from  contingencies  not  depend- 
ent upon  or  within  the  control  of  the  parties  and  thus 
have  no  relationship  whatever  to  the  conduct  of  the 
parties;  hence  these  obligations  are  not  based  upon 
wrongs.  It  follows  then  that  they  must  pertain  to  the 
subject  of  government  regulations,  and  are  in  the  nature 
of  economic  provisions  taking  the  form  of  indirect  tax- 
ation levied  to  regulate  occupations,  for  on  what  other 
basis  would  the  government  be  justified  in  writing  into 
the  labor  contract  against  the  will  of  the  parties,  an 
insurance  policy?  Were  this  not  so,  industrial  insur- 
ance or  workmen's  compensation  would  be,  without 
basis  of  justice  or  equity  from  the  standpoint  of  both 
the  employe  and  employer,  for  the  theory  of  such  laws 
is  that  compensation  is  not  to  be  commensurate  with 
injury  but  is  based  upon  wages,  thereby  substituting  for 
the  former  obligations  based  upon  tort,  which  offered 
damages  commensurate  with  injury,  a  purely  arbitrary 
sum.  Such  a  scheme  has  no  relation  to  the  adjustment 
of  private  wrongs.  If  it  be  justifiable  it  must  be  on  the 
sociological  theory  of  the  right  of  the  state  to  levy  a 
tax  for  the  purpose  of  protecting  from  an  economic 
standpoint,  the  community  as  a  whole.  It  follows, 
therefore,  whether  compensation  be  paid  by  the  state 


l6l  LEGAL  BASIS  OF  LAWS.  §  71 

as  insurance  in  the  form  of  a  tax  levied  upon  all  citizens 
of  the  state,  or  be  paid  through  the  intermediary  of  as- 
sessments levied  by  industrial  associations,  or  be  paid 
in  the  form  of  compensation  from  the  employer  to  the 
employe,  it  has  all  the  inherent  attributes  of  money 
raised  by  the  appropriation  of  private  rights  in  the  form 
of  a  tax  for  the  benefit  of  the  common  good.5 

It  would,  therefore,  seem  that  in  an  analysis  of  con- 
stitutional limitations  it  would  be  futile  to  look  for  an- 
alogy to  the  decisions  which  pertain  to  the  regulation  of 
the  private  relations  between  the  parties.  Hitherto,  for 
this  purpose  there  have  been  drawn  into  discussion  of 
this  subject,  cases  which  hold  a  statute  constitutional 
making  a  railroad  company  liable  for  injury  though 
without  fault;6  cases  holding  statutes  constitutional 
which  make  railroad  companies  responsible  for  fires  set 
by  engines  though  without  fault;7  cases  holding  sub- 
contractors' lien  laws  constitutional,8  or  such  familiar 
illustrations  as  the  ancient  law  of  deodands  or  the  lia- 
bility of  the  husband  for  the  tort  of  the  wife,  or  the  lia- 
bility of  the  master  for  the  acts  of  his  servant.  But  it  is 
to  be  noted  that  all  the  statutory  or  common  law  duties 
interpreted  in  these  decisions  pertain  solely  to  the  pro- 
tection of  private  rights. 

§71.  Validity  as  to  employer — Deprivation  of  de- 
fenses.— It  is  clearly  within  the  power  of  a  State  Legis- 
lature to  deprive  the  employer  of  the  three  so-called 
common  law  defenses,  to-wit,  the  defense  of  the  fellow 
servant  rule,  the  defense  of  the  assumption  of  the  risk 
and  the  defense  of  contributory  negligence. 

This  proposition  is  amply  sustained  by  authority. 
The  supreme  judicial  court  of  Massachusetts,  addressing 

5R.  J.  Carey  Brief  on  the  power  of  Congress  In  respect  of  In- 
dustrial Insurance  and  the  Law  of  Workmen's  Compensation. 
«  Chicago,  etc.,  R.  Co.  v.  Zernicke,  183  U.  S.  582,  46  L.  ed.  339. 
v  gt.  Louis,  etc.,  R.  Co.  v.  Mathews,  165  U.  8.  1,  41  L.  ed.  611. 
8  Jones  v.  Great  Southern,  etc.,  Co.,  83  Fed.  370. 

11— BOYDWO 


§  7i       WORKMEN'S  COMPENSATION  AND  INSURANCE.      162 

itself  to  this  matter  in  a  case  involving  the  compensa- 
tion law  of  that  state,  said: 

"The  rules  of  law  relating  to  contributory  negligence 
and  assumption  of  the  risk  and  the  effect  of  negligence 
by  a  fellow  servant  were  established  by  the  courts,  not 
by  the  Constitution,  and  the  Legislature  may  change 
them  or  do  away  with  them  altogether  as  defenses  (as 
it  has  to  some  extent  in  the  employer's  liability  act)  as 
in  its  wisdom  in  the  exercise  of  powers  intrusted  to  it  by 
the  Constitution  it  deems  will  be  best  for  the  'good  and 
welfare  of  this  commonwealth.'  See  Missouri  Pacific 
Railway  v.  Mackey,  127  U.  S.  205,  32  L.  ed.  107;  Minne- 
sota Iron  Co.  v.  Kline,  199  U.  S.  593,  50  L.  ed.  322.  The 
act  expressly  provides  that  it  shall  not  apply  to  injuries 
sustained  before  it  takes  effect.  If,  therefore,  a  right  of 
action  which  has  accrued  under  existing  laws  for  per- 
sonal injuries  constitutes  a  vested  right  or  interest, 
there  is  nothing  in  the  section  which  interferes  with 
such  right  or  interests.  The  effect  of  the  section  is  not 
to  authorize  the  taking  of  property  without  due  process 
of  law,  as  the  Court  of  Appeals  of  New  York  held  was 
the  case  with  the  statute  referred  to  in  the  preamble  to 
the  questions  submitted  to  us,  and  which  in  consequence 
thereof  was  declared  by  that  court  to  be  unconstitu- 
tional. Ives  v.  South  Buffalo  Railway,  201  N.  Y.  271,  94 
N.  E.  431,  34  L.  R.  A.  (N.  S.)  162n.  Construing  the 
section  as  we  do  and  as  we  think  that  it  should  be  con- 
strued, it  seems  to  us  that  there  is  nothing  in  it  which 
violates  any  rights  secured  by  the  State  or  Federal 
Constitutions."9 

To  a  similar  effect  is  a  late  decision  of  the  Wiscon- 
sin Supreme  Court: 

"The  two  defenses  [the  defense  of  the  assumption 
of  risk  and  negligence  of  a  fellow  servant]  which  the 

» In  re  Opinion  of  Justices,  209  Mass.  607,  96  N.  E.  308. 


163  LEGAL  BASIS  OF  LAWS.  §  71 

legislature  has  thus  attempted  to  take  away  are  not 
entrenched  behind  any  express  constitutional  provision, 
nor  were  they  originally  created  by  legislative  action. 
They  were  both  evolved  by  the  courts.  *  *  * 

"It  is  frankly  admitted  by  appellant  that  it  is  within 
the  legislative  power  to  make  this  change  with  regard 
to  the  hazardous  trades,  but  not  with  regard  to  what 
are  called  the  non-hazardous  trades.  But  why  not? 
There  are,  of  course,  some  occupations  which  are  ex- 
ceptionally hazardous,  and  it  may  well  be  that  it  would 
be  within  legislative  discretion  to  classify  these  very 
hazardous  occupations  and  remove  the  defenses  to 
them,  while  retaining  them  as  to  others  less  hazardous. 
Indeed,  that  very  thing  has  been  done  and  has  been  ap- 
proved by  the  courts  in  this  and  many  other  states,  es- 
pecially in  the  case  of  railroads  and  to  some  extent  with 
other  industries.  Minnesota  Iron  Co.  v.  Kline,  199  U.  S. 
593,  26  Sup.  Ct.  159;  50  L.  ed.  322;  sec.  1816,  Stats. 
(1898),  as  amended  by  ch.  254,  Laws  of  1907;  Kiley, 
etc.,  C.  M.  &  St.  P.  R.  Co.,  142  Wis.  154,  125  N.  W.  464; 
sec.  1636J,  Stats.  (1898);  sec.  1636jj,  Stats,  (ch.  303, 
Laws  of  1905). 

"But  because  there  is  room  for  classification  it  does 
not  follow  that  legislation  without  classification  is  un- 
constitutional. There  are  hazards  in  all  occupations ;  in- 
deed they  follow  every  man  from  the  cradle  to  the 
grave.  What  constitutional  requirement,  either  express, 
or  implied,  clothes  these  court-made  defenses  with  ex- 
ceptional sanctity  as  to  the  less  hazardous  industries, 
and  wards  off  from  them  the  sacrilegious  hand  of  the 
legislature?  We  are  referred  to  none,  and  we  know  of 
none.  It  is  admitted  in  the  Ives  case,  supra  that  both 
the  fellow-servant  defense  and  the  contributory-negli- 
gence defense,  being  of  judicial  origin  may  be  changed 
or  abolished  by  the  legislature.  See  also  the  opinion  of 
the  Justices  of  the  Massachusetts  Supreme  Court  on  the 


§  72       WORKMEN'S  COMPENSATION  AND  INSURANCE.      164 

Personal  Injuries  act  of  1911,  96  N.  E.  308.  We  see  ab- 
solutely no  ground  for  the  contention  that  these  de- 
fenses may  be  lawfully  abrogated  as  to  the  more  haz- 
ardous industries,  but  must  be  forever  held  sacred  as  to 
the  less  hazardous  industries.  There  may  be  a  less  per- 
suasive reason  for  the  change  in  the  case  of  the  latter 
class  of  industries,  but  this  does  not  deprive  the  Legis- 
lature of  the  power  to  make  it."10 

§  72.  Validity  as  to  employe. — Workmen's  insur- 
ance and  compensation  acts  take  away  from  the  em- 
ploye his  common-law  right  of  action  against  his  em- 
ployer for  nonfatal  injuries  caused  by  the  employer's 
negligence.  As  to  fatal  injuries,  a  cause  of  action 
against  an  employer  was  unknown  to  the  common  law, 
is  a  statutory  creation,  and  consequently  (since  the  Con- 
stitution of  the  state  contains  no  inhibition)  is  subject 
without  question  to  repeal  by  the  Legislature.  The  pro- 
posed act  carefully  saves  any  right  of  action  on  account 
of  an  injury  received  prior  to  the  date  named  for  it  to 
become  operative,  upon  the  employers  and  employes 
affected  by  it.  The  question  involves  not  the  taking 
away  of  a  vested  right  of  action,  but  the  changing  of  the 
law  in  respect  of  expectancies  and  possibility  of  action 
in  which  the  party  has  no  present  interest. 

At  an  early  day  the  Legislature  of  Pennsylvania 
passed  a  statute  abolishing  the  doctrine  of  respondeat 
superior  in  the  case  of  persons  injured  on  or  near  rail- 
roads and  not  in  the  employ  of  the  railroad  company. 
Of  this  law  the  Supreme  Court  said :  "The  law  says  that 
the  legal  principle  of  respondeat  superior  shall  have  no 
place  in  this  particular  relation;  that  as  a  matter  of 
public  policy  for  the  good  of  all,  those  who  voluntarily 
venture  into  employment  alongside  of  the  servants  of  a 

lOBorgnis  v.  Falk,  147  Wis.  327,  133  N.  W.  209.    See  also  Ives  v. 
South  Buffalo  R.  Co.,  201  N.  Y.  271. 


165  LEGAL  BASIS  OF  LAWS.  §  72 

railroad  company  shall  have  just  the  same  remedies 
for  injuries  happening  in  the  employment  that  these 
have,  and  none  other.  In  doing  this  no  fundamental 
right  of  the  person  thus  voluntarily  venturing  is  cut  off 
or  struck  down.  The  liability  of  the  company  for  the 
acts  or  omission  of  others,  though  they  be  servants,  is 
only  an  offspring  of  the  law.  The  negligence  which 
injures  is  not  theirs  in  fact,  but  is  so  only  by  imputation 
of  law.  The  law  which  thus  imputes  it  to  the  company 
for  reason  of  public  policy  can  remove  the  imputation 
from  the  master  and  let  it  remain  with  the  servant 
whose  negligence  causes  the  injury."11 

The  Supreme  Court  of  the  United  States  had  before 
it  the  same  statute  and  sustained  it,  saying:  "If  it  be  con- 
ceded, as  contended,  that  the  plaintiff  in  error  could 
have  recovered  but  for  the  statute,  it  does  not  follow  that 
the  legislature  of  Pennsylvania,  in  preventing  a  recov- 
ery, took  away  a  vested  right  or  a  right  of  property.  As 
the  accident  from  which  the  cause  of  action  is  asserted  to 
have  arisen  occurred  long  after  the  passage  of  the  stat- 
ute, it  is  difficult  to  grasp  the  contention  that  the  statute 
deprived  the  plaintiff  in  error  of  the  rights  just  stated. 
Such  a  contention  in  reason  must  rest  upon  the  propo- 
sition that  the  state  of  Pennsylvania  was  without  power 
to  legislate  on  the  subject, — a  proposition  which  we 
have  adversely  disposed  of.  This  must  be,  since  it 
would  clearly  follow,  that  if  the  argument  relied  upon 
were  maintained,  that  the  state  would  be  without  power 
on  the  subject.  For  it  can  not  be  said  that  the  state  had 
authority  in  the  premises  if  that  authority  did  not  even 
extend  to  prescribing  a  rule  which  would  be  applicable 
to  conditions  wholly  arising  in  the  future."12 

A  right  of  action  of  a  third  person  against  a  master 

11  Kirby  v.  Pennsylvania  R.  Co.,  76  Pa.  506. 

12  Martin  v.  Pittsburg,  etc.,  R.  Co.,  203  U.  S.  284,  51  L.  ed.  184, 
27  S.  Ct.  100,  8  A,  &  E.  Ann.  Gas.  87. 


§  73       WORKMEN'S  COMPENSATION  AND  INSURANCE.      166 

for  negligence  of  his  servant  was  a  common-law  right 
of  action.18 

§73.  Validity  as  to  employe — Vested  rights  in 
remedies  withdrawn. — "Vested  rights,"  says  Judge 
Cooley,  "can  not  be  taken  away  by  legislative  enact- 
ments, but  a  right  can  not  be  considered  a  vested  right 
unless  it  is  something  more  than  such  a  mere  expecta- 
tion as  may  be  based  upon  the  anticipated  continuance 
of  the  present  general  laws.  The  Legislature  may 
change  such  general  laws  constitutionally  except  as  to  a 
right  of  interest  that  may  have  already  accrued  or  be- 
come perfected.  *  *  *  In  organized  society  every 
man  holds  all  he  possesses,  and  looks  forward  to  all  he 
hopes  for  through  the  aid  and  under  the  protection  of 
the  laws;  but  as  changes  of  circumstances  and  of  public 
opinion,  as  well  as  other  reasons  affecting  the  public 
policy,  are  all  the  while  calling  for  changes  in  the  laws, 
and  as  these  changes  must  influence  more  or  less  the 
value  and  stability  of  private  relations  and  strengthen 
or  destroy  well-founded  hopes,  and  as  the  power  to 
make  very  many  of  them  could  not  be  disputed  without 
denying  the  right  of  the  political  community  to  prosper 
and  advance,  it  is  obvious  that  many  rights,  privileges, 
and  exemptions  that  usually  pertain  to  ownership  un- 
der a  particular  state  of  law,  and  many  reasonable  ex- 
pectations, can  not  be  regarded  as  vested  rights  in  any 
sense."  Says  the  Supreme  Court  of  the  United 
States  in  Munn  v.  Illinois,  94  U.  S.  113,  24  L. 
ed.  77:  "A  mere  common-law  regulation  of  trade 
or  business  may  be  changed  by  statute.  A  per- 
son has  no  property,  no  vested  interest,  in  any  rule 
of  the  common  law.  That  is  only  one  of  the  forms  of 

J8  Middleton  v.  Fowler,  1  Salk.  282 ;  Blackstone's  Com.  431 ;  Gray 
v.  Portland  Bank,  3  Mass.  364,  3  Am.  Dec.  156;  Harlow  v.  Humis- 
ton,  6  Cow.  189. 


l6/  LEGAL  BASIS  OF  LAWS.  §  73 

municipal  law,  and  is  no  more  sacred  than  any  other. 
Rights  of  property  which  have  been  created  by  the  com- 
mon law  can  not  be  taken  away  without  due  process; 
but  the  law  itself,  as  a  rule  of  conduct,  may  be  changed 
at  the  will  or  even  at  the  whim  of  the  legislature,  un- 
less prevented  by  constitution  limitations.  Indeed  the 
great  office  of  statutes  is  to  remedy  defects  in  the  com- 
mon law  as  they  are  developed,  and  to  adapt  it  to 
changes  of  time  and  circumstances."14 

Some  of  the  states  in  their  Constitutions,  in  sub- 
stance, contain  the  provision  of  Magna  Charta,  that 
"every  man  shall  have  a  remedy  for  injury  done  him  in 
person,  property,  or  reputation."  Nevertheless,  the 
principle  last  above  stated  has  been  sustained  in  states 
having  such  a  constitutional  provision.15 

"Conceding  that  a  cause  of  action  for  personal  in- 
juries is  property,  the  cause  of  action,  i.  e.,  the  property 
must  exist  before  one  can  be  deprived  of  it  at  all.  A 
statute  which  abrogates  a  cause  of  action  for  personal 
injury  before  such  cause  of  action  has  arisen  or  before 
the  injury  occurs,  or  requires  certain  things  to  be  done 
by  the  injured  party  as  conditions  precedent  to  a  cause 
of  action,  does  not  deprive  the  injured  party  of  his  prop- 
erty rights  without  due  process  of  law.  *  *  *  In 
other  words,  the  legislature  may  create  a  right  of  ac- 
tion which  never  existed,  if  in  doing  so  it  does  not  affect 
rights  which  vested  prior  thereto.  A  party  injured  after 
the  legislature  has  taken  away  the  right  of  action  for 
personal  injuries  can  no  more  complain  of  it  than  a  party 
against  whom  a  right  of  action  is  given  for  an  injury 
resulting  in  death,  can  of  such  a  legislative  enactment. 

14  Munn  v.  Illinois,  94  U.  S.  113,  24  L.  ed.  77.  Applied  to  the  re- 
lation of  master  and  servant  in  Vindicator  Consol.  Gold  Min.  Co. 
v.  Firstbrook,  36  Colo.  498,  86  Pac.  313,  10  A.  &  E.  Ann.  Cas.  1108. 

iBTempleton  v.  Linn  County,  22  Ore.  313,  51  L.  R.  A.  730,  29 
Pac.  795 ;  William  v.  Galveston,  41  Tex.  Civ.  App.  63,  90  S.  W.  505. 


§  74       WORKMEN'S  COMPENSATION  AND  INSURANCE.      168 

For  the  one  party  is  no  more  injuriously  affected  by 
such  legislation  than  the  other.  In  the  one  case  what 
was  before  actionable  ceases  to  be  so ;  in  the  other,  what 
was  not  before  actionable  becomes  so."16 

§  74.    Validity  as  to  the  State — Public  interest. — 

Workmen's  insurance  and  compensation  acts  generally 
provide  for  the  creation  of  a  new  department  for  their 
administration,  the  expenses  of  which  are  borne  by  the 
state.  The  usual  limitation  on  the  right  of  the  state  to 
expend  the  moneys  of  the  state  is  that  the  expenditure 
shall  be  for  a  public  purpose.  It  is  clear  that  it  is  a  pub- 
lic purpose  to  pay  the  salaries  and  defray  the  office, 
trr.veling  and  court  expenses  of  state  officials,  and  other 
expenses  of  a  state  department  charged  with  the  ad- 
ministration of  a  branch  of  the  police  power  of  the 
state,  just  as  the  state  bears  without  question  the  ex- 
pense of  administration  of  other  departments,  e.  g.,  the 
railroad  commission,  mine,  factory,  grain  and  hotel  in- 
spection, all  operating  under  the  police  power. 

§  75.  The  problem  of  industrial  insurance. — The  in- 
quiry at  the  outset  of  the  discussion  would  seem  to  be: 
Has  the  state  the  power  to  regulate  industries  for  the 
purpose  of  protecting  the  economic  welfare  of  the  com- 
munity by  levying  a  tax  in  the  form  of  an  insurance 
obligation  upon  the  same  for  the  benefit  of  the  employes 
injured  while  employed  in  such  industries?  And  again, 
if  the  state  has  a  right  to  levy  such  a  tax  may  it  as  part 
of  the  private  rights  appropriated  by  it  for  the  benefit 
of  the  common  good,  take  from  the  employe  the  right 
now  belonging  to  him  to  redress  his  personal  injury 
caused  by  the  default  of  his  employer  by  recovering 
damages  from  the  latter? 

i«  Sawyer  v.  El  Paso,  etc.,  R.  Co.,  49  Tex.  Civ.  App.  106,  108  S. 
W.  718. 


169  LEGAL  BASIS  OF  LAWS.  §  76 

§  76.  Whether  these  laws  infringe  constitutional 
limitations. — The  insurance  and  compensation  acts  are 
generally  contested  on  the  ground  that  they  are  viola- 
tive  of  recognized  constitutional  limitations,  in  that  they 
authorize  the  taking  of  property  without  due  process  of 
law,  they  lack  uniformity  of  operation,  they  curtail  un- 
lawfully the  administration  of  judicial  authority,  they 
authorize  the  taking  of  private  property  for  private  use, 
they  authorize  the  taking  of  private  property  for  public 
use,  they  delegate  legislative  powers,  they  impair  the 
obligation  of  contracts  between  employer  and  employe, 
they  amount  to  an  unreasonable  exercise  of  the  police 
power. 

§  77.  Insurance  acts  sustainable  against  constitu- 
tional objections  under  analogous  decisions. — It  is  be- 
lieved that  insurance  acts  are  already  well  ground- 
ed as  against  the  foregoing  constitutional  objec- 
tions in  four  distinct  lines  of  cases  in  American  juris- 
prudence. These  cases  are  (a)  The  bank  depositors 
guarantee  act  cases;  (b)  The  sheep-dog  law  cases;  (c) 
The  cases  which  justify  the  enactment  of  a  law  which 
authorizes  the  creation  of  a  fund  to  be  disbursed  by  a 
state  commission  in  the  erection  and  operation  of  a  state 
asylum  for  inebriates;  (d)  The  cases  which  uphold  stat- 
utes imposing  a  liability  upon  fire  insurance  agents,  of 
the  nature  of  a  tax,  based  upon  the  amount  of  insur- 
ance effected  by  them,  for  the  creation  of  a  fund  to 
care  for  and  cure  sick  and  injured  firemen. 

§  78.  Analogous  decisions — Application  ,to  insur- 
ance acts. — Each  class  of  these  four  lines  of  cases 
is  an  example  of  the  police  power  of  the  states 
to  create  a  fund  by  taxation  for  the  protection  of 
the  health,  safety  and  general  welfare  of  classes  of  citi- 
zens and  the  general  public.  The  rule  is  that  an  ulter- 
ior public  advantage  may  justify  a  comparatively  insig- 


§  78       WORKMEN'S  COMPENSATION  AND  INSURANCE.      170 

nificant  taking  of  private  property  for  what,  in  its  im- 
mediate purpose,  is  a  private  use. 

The  principles  involved  in  the  New  York  Compen- 
sation Act  do  not  fall  within  this  rule.  There  the  re- 
moval of  the  defenses  of  the  employer,  and  making  him 
personally  liable  for  any  sum  from  a  few  dollars  to 
$3,000.00  in  cases  where  heretofore  he  was  not  liable 
at  all,  so  to  speak,  taking  his  property  in  chunks  for 
which  heretofore  he  was  not  liable  at  all  and  allowing 
the  employe  to  choose  to  take  under  the  new  act,  or  to 
sue  under  the  old  liability  or  common-law,  is  taking 
property  without  the  process  of  law. 

This  line  of  cases  authorizes  the  state  legislatures 
to  provide  for  summary  methods  of  collecting  and 
distributing  the  several  funds  through  the  executive 
and  admministrative  arms  of  the  state,  in  a  manner  simi- 
lar to  that  provided  by  the  insurance  and  compensation 
acts  through  the  Liability  Board  of  Awards. 

§  79.  Analogous  decisions — Bank  depositors'  guar- 
antee acts. — That  the  foregoing  constitutional  limita- 
tions are  safely  guarded  is  borne  out  by  reference  to  the 
decisions  of  the  Supreme  Court  of  the  United  States  in 
the  bank  depositors  guaranty  cases.17  In  these  cases 
state  legislatures  required  the  creation  of  funds  for  the 
purpose  of  protecting  depositors  in  insolvent  banks.  In 
Oklahoma  the  statute  created  a  board  and  directed  it 
to  levy  on  every  bank  existing  under  the  laws  of  the 
state  an  assessment  of  a  certain  per  cent,  of  the  bank's 
average  daily  deposits,  with  certain  deductions,  for  the 
purpose  of  creating  a  depositors'  guaranty  fund.  Said 
Mr.  Justice  Holmes: 

"We    must  be  cautious  about  pressing  the  broad 

17  Noble  State  Bank  v.  Haskell,  219  U.  S.  104,  55  L.  ed.  112,  31 
Sop.  Ct.  299;  Shallenberger  v.  First  State  Bank,  219  U.  S.  114,  31 
Sup.  Ct.  189,  55  L.  ed.  117;  Assarla  State  Bank  v.  Dolley,  219  U.  S. 
121,  31  Sup.  Ct.  189,  55  L.  ed.  123. 


171  LEGAL  BASIS  OF  LAWS.  §  /8 

words  of  the  14th  amendment  to  a  drily  logical  extreme. 
Many  laws  which  it  would  be  vain  to  ask  the  court  to 
overthrow  could  be  shown,  easily  enough,  to  transgress 
a  scholastic  interpretation  of  one  or  another  of  the 
great  guarantees  in  the  Bill  of  Rights.  They  more  or 
less  limit  the  liberty  of  the  individual,  or  they  diminish 
property  to  a  certain  extent.  We  have  few  scientifically 
certain  criteria  of  legislation,  and  as  it  is  often  difficult 
to  mark  the  line  where  what  is  called  the  police  power 
of  the  states  is  limited  by  the  Constitution  of  the  United 
States,  judges  should  be  slow  to  read  into  the  latter  a 
nolumus  mutare  as  against  the  law-making  power. 

"The  substance  of  the  plaintiff's  argument  is  that  the 
assessment  takes  private  property  for  private  use  with- 
out compensation.  And  while  we  should  assume  that 
the  plaintiff  would  retain  a  revisionary  interest  in  its 
contribution  to  the  fund  so  as  to  be  entitled  to  a  return 
of  what  remained  of  it  if  the  purpose  were  given  up  (see 
Danby  Bank  v.  State  Treasurer,  39  Vt.  92,  98),  still 
there  is  no  denying  that  by  this  law  a  portion  of  its 
property  might  be  taken  without  return  to  pay  debts 
of  a  failing  rival  in  business.  Nevertheless,  notwith- 
standing the  logical  form  of  the  objection,  there  are 
more  powerful  considerations  on  the  other  side.  In  the 
first  place,  it  is  established  by  a  series  of  cases  that  an 
ulterior  public  advantage  may  justify  a  comparatively 
insignificant  taking  of  private  property  for  what,  in  its 
immediate  purpose,  is  a  private  use.  Clark  v.  Nash,  198 
U.  S.  361,  49  L.  ed.  1085,  25  Sup.  Ct.  676,  4  A.  &  E. 
Ann.  Cas.  1171;  Strickley  v.  Highland  Boy  Gold  Min. 
Co.,  200  U.  S.  527,  531,  50  L.  ed.  581,  583,  26  Sup.  Ct. 
301;  4  A.  &  E.  Ann.  Cas.  1174;  Olfield  v.  New 
York,  N.  H.  &  H.  R.  Co.,  203  U.  S.  372,  51  L  ed.  231.  27 
Sup.  Ct.  72;  Bacon  v.  Walker,  204  U.  S.  311,  315, 
51  L.  ed.  499,  501,  27  Sup.  Ct.  289.  And  in  the 
next,  it  would  seem  that  there  may  be  other  cases  be- 


§  78       WORKMEN'S  COMPENSATION  AND  INSURANCE.      172 

sides  the  every-day  one  of  taxation,  in  which  the  share 
of  each  party  in  the  benefit  of  a  scheme  of  mutual  pro- 
tection is  sufficient  compensation  for  the  correlative  bur- 
den that  it  is  compelled  to  assume.  See  Ohio  Oil  Co. 
v.  Indiana,  177  U.  S.  190,  44  L.  ed.  729,  20  Sup.  Ct. 
576,  20  Mor.  Min.  Rep.  466.  At  least  if  we  have  a  case 
within  the  reasonable  exercise  of  the  police  power,  as 
above  explained,  no  more  need  be  said. 

"It  may  be  said  in  a  general  way  that  the  police 
power  extends  to  all  the  great  public  needs.  Cam- 
field  v.  United  States,  167  U.  S.  518,  42  L.  ed. 
260,  17  Sup.  Ct.  864.  It  may  be  put  forth  in  aid 
of  what  is  sanctioned  by  usage,  or  held  by  the 
prevailing  morality  or  strong  and  preponderant  opinion 
to  be  greatly  and  immediately  necessary  to  the  public 
welfare.  Among  matters  of  that  sort  probably  few 
would  doubt  that  both  usage  and  preponderant  opinion 
give  their  sanction  to  enforcing  the  primary  conditions 
of  successful  commerce.  One  of  those  conditions  at  the 
present  time  is  the  possibility  of  payment  by  checks 
drawn  against  bank  deposits,  to  such  an  extent  do 
checks  replace  currency  in  daily  business.  If,  then,  the 
legislature  of  the  state  thinks  that  the  public  welfare 
requires  the  measure  under  consideration,  analogy  and 
principle  are  in  favor  of  the  power  to  enact  it.  Even 
the  primary  object  of  the  required  assessment  is  not  a 
private  benefit  as  it  was  in  the  cases  above  cited  of  a 
ditch  for  irrigation  or  a  railway  to  a  mine,  but  it  is  to 
make  the  currency  of  checks  secure,  and  by  the  same 
stroke  to  make  safe  the  almost  compulsory  resort  of 
depositors  to  banks  as  the  only  available  means  for 
keeping  money  on  hand.  The  priority  of  claim  given 
to  depositors  is  incidental  to  the  same  object  and  is 
justified  in  the  same  way.  The  power  to  restrict  lib- 
erty by  fixing  a  minimum  of  capital  required  of  those 
who  would  engage  in  banking  is  not  denied.  The  power 


173  LEGAL  BASIS  OF  LAWS.  §  80 

to  restrict  investments  to  securities  regarded  as  rela- 
tively safe  seems  equally  plain.  It  has  been  held,  we  do 
not  doubt  rightly,  that  inspections  may  be  required  and 
the  cost  thrown  on  the  bank.  See  Charlotte,  C.  &  A.  R. 
Co.  v.  Gibbes,  142  U.  S.  386,  35  L.  ed.  1051,  12  Sup.  Ct. 
255.  The  power  to  compel  beforehand,  co-opera- 
tion, and  thus,  it  is  believed,  to  make  a  failure  unlikely 
and  a  general  panic  almost  impossible,  must  be  recog- 
nized, if  government  is  to  do  its  proper  work,  unless  we 
can  say  that  the  means  have  no  reasonable  relation  to 
the  end.  Gundling  v.  Chicago,  177  U.  S.  183,  188,  44 
L.  ed.  725,  728,  20  Sup.  Ct.  633.  So  far  is  that  from 
being  the  case  that  the  device  is  a  familiar  one.  It  was 
adopted  by  some  states  the  better  part  of  a  century  ago, 
and  seems  never  to  have  been  questioned  until  now. 
Danby  Bank  v.  State  Treasurer,  39  Vt.  92;  People  v. 
Walker,  17  N.  Y.  502.  Recent  cases  going  not  less  far 
are  Lemieux  v.  Young,  211  U,  S.  489,  496,  53  L.  ed. 
295,  300,  29  Sup.  Ct.  174;  Kidd,  D.  &  P.  Co.  v.  Mussel- 
man  Grocer  Co.  217  U.  S.  461,  54  L.  ed.  839,  30  Sup.  Ct. 
606." 

§  80.  Analogous  decisions — Sheep-dog  fund  cases. — 
Many  states,  notably  Ohio,  Illinois,  Indiana,  Kentucky, 
Michigan  and  Massachusetts,  exercising  the  police 
power  for  the  promotion  of  the  sheep  industry  and  pub- 
lic welfare,  have  enacted  statutes  imposing  a  tax  or 
license  upon  dogs  in  a  stated  sum,  collecting  the  same 
from  the  owner,  placing  the  collections  in  a  public  fund, 
and  distributing  the  same  through  state  officers  in  pay- 
ment of  damages  to  owners  of  sheep  killed  by  dogs. 
These  statutes  have  been  universally  upheld  by  the 
courts. 

The  Ohio  act  was  attacked  as  being  an  unconstitu- 
tional exercise  of  the  taxing  power  of  the  state  and  an 


§  8 1        WORKMEN'S  COMPENSATION  AND  INSURANCE.      174 

unreasonable  exercise  of  the  police  power.     The  court 
said  in  sustaining  this  law: 

"While  the  dog  as  a  species,  possesses  many  val- 
uable traits  which  by  some  are  denominated  virtues, 
it  is  nevertheless  known  of  all  men,  that  he  possesses 
vicious  traits  which  are  especially  inimical  to  the  im- 
portant industry  of  raising  sheep  and  wool.  If  the  gov- 
ernment were  powerless  to  protect  this  industry  from 
the  ravage  of  dogs,  it  would  indeed  be  important  to 
protect  its  citizens  in  the  enjoyment  of  property,  than 
which  none  other  is  more  essential  to  the  public  wel- 
fare. But  such  power  is  unquestionably  vested  in  the 
general  assembly  as  a  police  power,  and,  in  the  judg- 
ment of  the  general  assembly  a  per  capita  tax  on  dogs 
has  been  deemed  a  means  of  securing  the  necessary 
protection  to  sheep  owners;  and,  as  the  choice  of  means 
was  within  the  power  and  discretion  of  the  general 
assembly,  its  judgment  is  not  subject  to  judicial  con- 
trol. The  original  statute  on  this  subject  (which  has 
been,  in  substance  transferred  to  Revised  Statutes  above 
quoted)  (passed  May  5,  1877,  74  Ohio  L.  177)  was  en- 
titled 'An  Act  for  the  protection  of  wool  growers  and 
the  confiscation  of  dogs,'  a  subject  not  only  within  the 
police  powers  of  the  general  assembly,  but  one  deserv- 
ing of  its  consideration.18 

§  81.  Analogous  decisions — Whisky  cure  cases. — 
The  Supreme  Court  of  Minnesota  sustained  an  act  to 
establish  a  fund  for  the  foundation  and  maintenance  of 
an  asylum  for  inebriates,  requiring  all  sellers  of  liquors 
to  pay  ten  dollars  a  year  to  the  state  treasurer,  through 
the  county  treasurers,  in  addition  to  the  usual  license, 
the  fund  to  be  disbursed  by  a  state  commission  in  the 

is  Hoist  v.  Roe,  39  Ohio  St.  340,  citing  Van  Horn  v.  People,  46 
Mich.  183;  Cole  v.  Hall,  103  111.  30;  Mitchell  v.  Williams,  27  Ind. 
62 ;  McGlone  v.  Wornock,  129  Ky.  274,  111  S.  W.  688 ;  Blair  v.  Fore- 
hand, 100  Mass.  136. 


175  LEGAL  BASIS  OF  LAWS.  §  8 1 

erection  and  operation  of  a  state  asylum  for  inebriates. 
The  court  in  its  opinion  points  out  that  the  act  is  an 
exercise  of  the  police  power  upon  a  subject  clearly  with- 
in that  power,  saying: 

"This  act  regards  the  traffic  as  one  tending  to  pro- 
duce intemperance,  and  as  likely,  by  reason  thereof,  to 
entail  upon  the  state  the  expense  and  burden  of  pro- 
viding for  a  class  of  persons  rendered  incapable  of  self- 
support,  the  evil  influence  of  whose  presence  and  ex- 
ample upon  society  is  necessarily  injurious  to  the  public 
welfare  and  prosperity,  and,  therefore,  calls  for  such 
legislative  interposition  as  will  operate  as  a  restraint 
upon  the  business,  and  protect  the  community  from  the 
mischiefs,  evils  and  pecuniary  burdens  flowing  from  its 
prosecution.  *  *  *  That  these'  provisions  unmistak- 
ably partake  of  the  nature  of  police  regulations,  and  are 
strictly  of  that  character,  there  can  be  no  doubt,  nor  can 
it  be  denied  that  their  expediency  or  necessity  is  solely 
a  legislative,  and  not  a  judicial,  question.  *  *  *  Re- 
garding the  law  as  a  precautionary  measure,  intended  to 
operate  as  a  wholesome  restraint  upon  the  traffic,  and 
as  a  protection  to  society  against  its  consequent  evils, 
the  exacted  fee  is  not  unreasonable  in  amount,  and  the 
purpose  to  which  it  is  devoted  is  strictly  pertinent  and 
appropriate.  It  could  not  be  questioned  but  that  a  rea- 
sonable sum  imposed  in  the  way  of  an  indemnity  to  the 
state  against  the  expense  of  maintaining  a  police  force 
to  supervise  the  conduct  of  those  engaged  in  the  busi- 
ness, and  to  guard  against  the  disorders,  and  infractions 
of  law  occasioned  by  its  prosecution,  would  be  a  legiti- 
mate exercise  of  the  police  power,  and  not  open  to  the 
objection  that  it  was  a  tax  for  the  purpose  of  revenue, 
and,  therefore,  unconstitutional.  Reclaiming  the  ine- 
briate, restoring  him  to  society,  prepared  again  to  dis- 
charge the  duties  of  citizenship,  equally  promotes  the 
public  welfare,  and  tends  to  the  accomplishment  of  like 


§  82       WORKMEN'S  COMPENSATION  AND  INSURANCE.      176 

beneficial  results,  and  it  is  difficult  to  see  wherein  the 
imposition  of  a  reasonable  license  fee  would  be  any  the 
less  a  proper  exercise  of  this  power  in  the  one  case  than 
in  the  other.  The  purpose  to  which  the  license  fund 
created  by  the  act  is  designated  is  more  consonant  to 
the  idea  of  regulating  the  traffic  and  preventing  its  evils 
than  is  the  case  under  the  general  license  law,  which 
devotes  the  fees  received  to  common  school  purposes, 
and  we  are  not  aware  that  any  objection  has  ever  been 
urged  against  that  law  on  that  account."19 

This  case  is  cited  with  approval  by  Professor 
Freund  in  his  work  on  the  Police  Power,  Sec.  623. 

§  82.    Analogous  decisions — Firemen's  fund  cases. 

— Statutes  imposing  a  liability  upon  fire  insurance 
agents,  based  upon  the  amount  of  the  insurance  effect- 
ed by  them,  for  the  benefit  of  a  fund  to  care  for  injured 
firemen  have  been  upheld  in  the  states  of  New  York, 
Illinois  and  Wisconsin.20 

§  83.  These  laws  an  exercise  of  taxing  power — At- 
tributes and  limitations  of  taxing  power. — It  is  import- 
ant to  inquire  as  to  the  right  to  tax  and  the  extent  of  this 
right,  for  it  is  this  power  of  the  state  that  is  invoked  to 
sustain  all  insurance  and  compensation  acts.  "The  pow- 
er of  taxation,"  says  Judge  Cooley,21  "is  an  incident  of 
sovereignty,  and  is  possessed  by  the  government  with- 
out being  expressly  conferred  by  the  people.  It  is  a  leg- 
islative power;  and  when  the  people,  by  their  constitu- 
tions, create  a  department  of  government  upon  which 
they  confer  the  power  to  make  laws,  the  power  of  taxa- 

i»  State  v.  Cassidy,  22  Minn.  312. 

20  Fire  Department  v.  Noble,  3  E.  D.  Smith   (N.  Y.)   440;  Fire 
Department  v.  Wright,  3  E.  D.  Smith  (N.  Y.)    453;  Exempt  Fire- 
man's Fund  v.  Roome,  29  Hun  (N.  Y.)  391,  394;  Firemen's  Benevo- 
lent Ass'n  v.  Lounsbury,  21  111.  511,  74  Am.  Dec.  115;  Fire  Depart- 
ment v.  Helfenstein,  16  Wis.  136. 

21  Cooley  Taxation  (2d  ed.),  p.  4. 


177  LEGAL  BASIS  OF  LAWS.  §  83 

tion  is  conferred  as  part  of  the  more  general  power. 
*  *  *  Everything  to  which  the  legislative  power  ex- 
tends may  be  the  subject  of  taxation,  whether  it  be  per- 
son or  property,  or  possession,  franchise  or  privilege,  or 
occupation  or  right.  Nothing  but  express  constitution- 
al limitation  upon  legislative  authority  can  exclude  any- 
thing to  which  the  authority  extends  from  the  grasp  of 
the  taxing  power,  if  the  legislature  in  its  discretion 
shall  at  any  time  select  it  for  revenue  purposes  and  not 
only  is  the  power  unlimited  in  its  reach  as  to  subjects, 
but  in  its  very  nature  it  acknowledges  no  limits,  and  may 
be  carried  to  any  extent  which  the  government  may  find 
expedient.  It  may,  therefore,  be  employed  again  and 
again  upon  the  same  subjects,  even  to  the  extent  of  ex- 
haustion and  destruction,  and  may  thus  become  in  its 
exercise  a  power  to  destroy.  If  the  power  be  threatened 
with  abuse,  security  must  be  found  in  the  responsibility 
of  the  legislature  which  imposes  the  tax  to  the  con- 
stituency who  are  to  pay  it.  The  judiciary  can  afford  no 
redress  against  oppressive  taxation,  so  long  as  the  leg- 
islature, in  imposing  it,  shall  keep  within  the  limits  of 
legislative  authority  and  violate  no  express  provision 
of  the  constitution.  The  necessity  for  imposing  it  ad- 
dresses itself  to  the  legislative  discretion,  and  it  is  or 
may  be  an  urgent  necessity  which  will  admit  of  no  prop- 
erty or  other  conflicting  right  in  the  citizen  while  it  re- 
mains unsatisfied." 

"But,"  says  Judge  Cooley,  "great  as  is  the  power  of 
any  sovereignty  to  levy  and  collect  taxes  from  its  citi- 
zens, it  is  not  in  a  constitutional  country  without  limita- 
tions which  are  of  a  very  distinct  and  positive  nature."22 

"It  is  unfit,"  says  Chief  Justice  Marshall,  "for  the 
judicial  department  to  inquire  what  degree  of  taxation 

22  Cooley  Taxation  (2d  ed.)  54. 

12— BOTD  W  C 


§  84       WORKMEN'S  COMPENSATION  AND  INSURANCE.      178 

is  the  legitimate  use,  and  what  degree  may  amount  to 
the  abuse  of  the  power."23 

§  84.  Subjects  of  taxation. — It  is  to  be  borne  in 
mind  that  though  the  state  is  practically  unlimited  as  to 
the  e~xtent  of  the  burden  it  may  impose  in  the  way  of 
taxation,  yet  this  power  must  be  exercised  within  well 
defined  limitations  as  to  the  subjects  of  taxation. 

"The  power  of  taxation,"  says  the  Supreme  Court 
of  the  United  States,  "however  vast  in  its  character, 
and  searching  in  its  extent,  is  necessarily  limited  to 
subjects  within  the  jurisdiction  of  the  state.  These  sub- 
jects are  persons,  property  and  business.  Whatever 
form  taxation  may  assume,  whether  as  duties,  imposts, 
excises  or  licenses,  it  must  relate  to  one  of  these  sub- 
jects. It  is  .not  possible  to  conceive  of  any  other, 
though  as  applied  to  them  the  taxation  may  be  exer- 
cised in  a  great  variety  of  ways.  It  may  touch  property 
in  every  shape  in  its  natural  condition,  in  its  manufac- 
tured form,  and  in  its  various  transmutations.  And  the 
amount  of  the  taxation  may  be  determined  by  the  value 
of  the  property,  or  its  use,  or  its  capacity,  or  its  produc- 
tiveness. It  may  touch  business  in  the  almost  infinite 
forms  in  which  it  is  conducted,  in  professions,  in  com- 
merce, in  manufactures  and  in  transportation."24  To 
similar  effect  Chief  Justice  Marshall  said:  "The  power 
of  legislation,  and  consequently  of  taxation,  operates  on 
all  persons  and  property  belonging  to  the  body  politic. 
This  is  an  original  principle,  which  has  its  foundation 
in  society  itself.  It  is  granted  by  all  for  the  benefit  of 
all.  It  resides  in  the  government  as  part  of  itself,  and 
need  not  be  reserved  where  property  of  any  description, 
or  the  right  to  use  it  in  any  manner,  is  granted  to  indi- 

23McCullough  v.  Maryland,  4  Wheat.   (U.  S.)  316,  430,  4  L.  ed. 
415. 

24  State  Tax  on  Foreign  Held  Bonds,  15  Wall.  (U.  S.)  315. 


179  LEGAL  BASIS  OF  LAWS.  §  85 

viduals  or  corporate  bodies.  However  absolute  the 
right  of  an  individual  may  be,  it  is  still  in  the  nature  of 
that  right  that  it  must  bear  a  portion  of  the  public  bur- 
dens; and  that  portion  must  be  determined  by  the  legis- 
lature. This  vital  power  may  be  abused;  *  *  *  but 
the  interest,  wisdom  and  justice  of  the  representative 
body,  and  its  relations  with  its  constituents,  furnish  the 
only  security  where  there  is  no  express  contract,  against 
unjust  and  excessive  taxation,  as  well  as  against  unwise 
legislation  generally."25 

§  85.  Similarity  of  attributes  of  general  taxation 
and  eminent  domain. — The  underlying  principle  of  spe- 
cial taxation,  general  taxation  and  eminent  domain  is  the 
same,  namely,  that  for  the  tax  collected  a  return  shall 
be  given  back  to  the  individual  whose  property  is  ap- 
propriated. "Taxation  and  eminent  domain  indeed  rest 
substantially  on  the  same  foundation,  as  each  implies 
the  taking  of  private  property  for  the  public  use  on 
compensation  made ;  but  the  compensation  is  different 
in  the  two  cases.  When  taxation  takes  money  for  the 
public  use,  the  taxpayer  receives,  or  is  supposed  to  re- 
ceive, his  just  compensation  in  the  protection  which 
government  affords  to  life,  liberty  and  property,  in  the 
public  conveniences  which  it  provides,  and  in  the 
increase  in  the  value  of  possessions  which  comes  from 
the  use  to  which  the  government  applies  the  money 
raised  by  the  tax;  and  these  benefits  amply  support  the 
individual  burden."26 

"The  theory  of  the  law  is,  that  full  compensation  is 
then  received  in  every  instance.  It  is  not,  it  is  true,  a 
compensation  made  in  money,  but,  as  in  every  other 
case  of  taxation,  the  person  taxed  is  to  receive  a  benefit 
from  the  expenditure  of  the  moneys  collected."27 

25  Providence  Bank  v.  Billings,  4  Pet.  (U.  S.)  514,  561,  7  L.  ed.  171. 
26Cooley  Conet.  Lim.  (7th  ed.),  p.  715. 
27Cooley  Taxation  (2d  ed.),  p.  625. 


§  86       WORKMEN'S  COMPENSATION  AND  INSURANCE.      180 

§  86.  Necessity  that  purpose  of  tax  be  a  public  pur- 
pose.— "It  is  the  first  requisite  of  lawful  taxation,"  says 
Judge  Cooley,  "that  the  purpose  for  which  it  is  laid 
shall  be  a  public  purpose.  The  decision  to  lay  a  tax  for 
a  given  purpose  involves  a  legislative  conclusion  that 
the  purpose  is  one  for  which  a  tax  may  be  laid;  in  other 
words,  is  a  public  purpose.  But  the  determination  of 
the  legislature  on  this  question  is  not,  like  its  decision 
on  ordinary  questions  of  public  policy,  conclusive  either 
on  the  other  departments  of  the  government,  or  on  the 
people.  The  question,  what  is  and  what  is  not  a  public 
purpose,  is  one  of  law;  and  though  unquestionably  the 
legislature  has  large  discretion  in  selecting  the  object 
for  which  taxes  shall  be  laid,  its  decision  is  not  final.  In 
any  case  in  which  the  legislature  shall  have  clearly  ex- 
ceeded its  authority  in  this  regard  and  levied  a  tax  for  a 
purpose  not  public,  it  is  competent  for  any  one  who  in 
person  or  property  is  affected  by  the  tax,  to  appeal  to 
the  courts  for  protection."28 

§  87.  The  public  purpose  for  which  taxes  may  be 
levied. — The  regulation  of  private  rights  for  a  public 
purpose  under  the  police  power  is  as  much  an  appropria- 
tion of  property  as  the  direct  taking  of  property  under 
the  taxing  power.  Thus  one  of  the  powers  of  exercis- 
ing the  police  power  is  to  levy  a  tax  for  regulative  pur- 
poses instead  of  for  revenue. 

"There  are  some  cases  in  which  levies  are  made  and 
collected  under  the  general  designation  of  taxes,  or 
under  some  term  employed  in  revenue  laws  to  indicate 
a  particular  class  of  taxes,  where  the  imposition  of  the 
burden  may  fairly  be  referred  to  some  other  authority 
than  to  that  branch  of  the  sovereign  power  of  the  state 
under  which  the  public  revenues  are  apportioned  and 
collected.  The  reason  is,  that  the  imposition  has  not 

28  Cooley  Taxation  (2d  ed.),  p.  55. 


l8l  LEGAL  BASIS  OF  LAWS.  §  87 

for  its  object  the  raising  of  revenue,  but  looks  rather  to 
the  regulation  of  relative  rights,  privileges  and  duties 
as  between  individuals,  to  the  conservation  of  order  in 
the  political  society,  to  the  encouragement  of  industry, 
and  the  discouragement  of  pernicious  employments. 
Legislation  for  these  purposes  it  would  seem  proper  to 
look  upon  as  being  made  in  the  exercise  of  that  author- 
ity which  is  inherent  in  every  sovereignty,  to  make  all 
such  rules  and  regulations  as  are  needful  to  secure  and 
preserve  the  public  order,  and  to  protect  each  individual 
in  the  enjoyment  of  his  own  rights  and  privileges  by 
requiring  the  observance  of  rules  of  order,  fairness  and 
good  neighborhood,  by  all  around  him.  This  manifes- 
tation of  the  sovereign  authority  is  usually  spoken  of  as 
the  police  power."29 

Industrial  insurance  would  seem  in  part  to  come 
within  the  scope  of  regulative  legislation  above  referred 
to,  since  the  fund  necessary  to  be  raised  to  protect  the 
employed  class  must  necessarily  be  created  through  the 
exercise  of  some  form  of  the  taxing  power,  and,  more- 
over, the  primary  object  of  such  regulative  legislation 
is  to  readjust  relations  between  certain  classes  of  so- 
ciety to  the  development  of  the  public  welfare.  There- 
fore in  determining  whether  such  legislation  be  con- 
stitutional or  not,  one  is  confronted  with  the  limitations 
placed  by  the  Fifth  Amendment  upon  the  exercise  of 
the  police  power  by  the  state  in  the  form  of  the  taxing 
power. 

What  then  is  a  public  purpose,  from  the  standpoint 
of  such  regulative  legislation? 

"In  the  first  place,  taxation  having  for  its  only  legit- 
imate object  the  raising  of  money  for  public  purposes 
and  the  proper  needs  of  government,  the  exaction  of 
moneys  from  the  citizens  for  other  purposes  is  not  a 

2»Cooley  Taxation  (3d  ed.),  1125. 


§  88       WORKMEN'S  COMPENSATION  AND  INSURANCE.      182 

proper  exercise  of  this  power,  and  must  therefore  be 
unauthorized.  In  this  place,  however,  we  do  not  use 
the  word  'public'  in  any  narrow  and  restricted  sense, 
nor  do  we  mean  to  be  understood  that  whenever  the 
legislature  shall  overstep  the  legitimate  bounds  of 
their  authority  the  case  will  be  such  that  the  courts  can 
interfere  to  arrest  their  action.  There  are  many  cases 
of  unconstitutional  action  by  the  representatives  of  the 
people  which  can  be  reached  only  through  the  ballot- 
box;  and  there  are  other  cases  where  the  line  of  dis- 
tinction between  that  which  is  allowable  and  that  which 
is  not  is  so  faint  and  shadowy  that  the  decision  of  the 
legislature  must  be  accepted  as  final,  even  though  the  ju- 
dicial opinion  might  be  different.  But  there  are  still  oth- 
er cases  where  it  is  entirely  possible  for  the  legislature 
so  clearly  to  exceed  the  bounds  of  due  authority  that  we 
can  not  doubt  the  right  of  the  courts  to  interfere  and 
check  what  can  only  be  looked  upon  as  ruthless  extor- 
tion, provided  the  nature  of  the  case  is  such  that  judi- 
cial process  can  afford  relief.  An  unlimited  power  to 
make  any  and  everything  lawful  which  the  Legislature 
might  see  fit  to  call  taxation,  would  be,  when  plainly 
stated,  an  unlimited  power  to  plunder  the  citizen."30 

§  88.  Public  purpose  determined  by  Legislature. — 
It  must  always  be  conceded  that  the  proper  authority 
to  determine  what  should  and  what  should  not  consti- 
tute a  public  bt^rden  is  the  legislative  department  of  the 
state.  This  is  not  only  true  for  the  state  at  large,  but 
it  is  true  also  in  respect  to  each  municipality  or  political 
division  of  the  state;  these  inferior  corporate  existences 
having  only  such  authority  in  this  regard  as  the  legis- 
lature shall  confer  upon  them.  And  in  determining  this 
question,  the  legislature  can  not  be  held  in  any  narrow 
or  technical  rule.  Not  only  are  certain  expenditures 

30  Cooley  Const  Lim.,  p. 


183  fEGAL  BASIS  OF  LAWS.  §  88 

absolutely  essential  to  the  continued  existence  of  the 
government  and  the  performance  of  its  ordinary  func- 
tions, but  as  a  matter  of  policy  it  may  sometimes  be 
proper  and  wise  to  assume  other  burdens  which  rest  en- 
tirely on  considerations  of  honor,  gratitude  or  charity. 
The  officers  of  government  must  be  paid,  the  laws 
printed,  roads  constructed  and  public  buildings  erected; 
but  with  a  view  to  the  general  well  being  of  society,  it 
may  also  be  important  that  the  children  of  the  state 
should  be  educated,  the  poor  kept  from  starvation, 
losses  in  the  public  service  indemnified,  and  incentives 
held  out  to  the  faithful  and  fearless  discharge  of  duty  in 
the  future,  by  the  payment  of  pensions  to  those  who 
have  been  faithful  public  servants  in  the  past.  There 
will,  therefore,  be  necessary  expenditures  which  rest 
upon  considerations  of  policy  only,  and  in  regard  to  the 
one  as  much  as  to  the  other,  the  decision  of  that  depart- 
ment to  which  alone  questions  of  state  policy  are  ad- 
dressed must  be  accepted  as  conclusive.81 

Very  strong  language  has  been  used  by  the  courts 
in  some  of  the  cases  on  this  subject.  In  a  case  where 
was  questioned  the  validity  of  the  state  law  confirming 
township  action  which  granted  gratuities  to  persons 
enlisting  in  the  military  service  of  the  United  States,  the 
Supreme  Court  of  Connecticut  assigned  the  following 
reasons  in  support: 

"In  the  first  place,  if  it  be  conceded  that  it  is  not 
competent  for  the  legislative  power  to  make  a  gift  of 
the  common  property,  or  of  a  sum  of  money  to  be  raised 
by  taxation,  where  no  possible  public  benefit,  direct  or 
indirect,  can  be  derived  therefrom,  such  exercise  of  the 
legislative  power  must  be  of  an  extraordinary  charac- 
ter to  justify  the  interference  of  the  judiciary;  and  this 
is  not  that  case. 

siCooley's  Const.  Lim.  (7th  ed.),  p.  699. 


§  89       WORKMEN'S  COMPENSATION  AND  INSURANCE.      184 

Second.  If  there  be  the  least  possibility  that  mak- 
ing the  gift  will  be  promotive  in  any  degree  of  the  pub- 
lic welfare,  it  becomes  a  question  of  policy,  and  not  of 
natural  justice,  and  the  determination  of  the  legislature 
is  conclusive.  And  such  is  this  case.  Such  gifts  to  un- 
fortunate classes  of  society,  as  the  indigent  blind,  the 
deaf  and  dumb,  or  insane,  or  grants  to  particular  col- 
leges or  school,  or  grants  of  pensions,  swords,  or  other 
mementoes  for  past  service,  involving  the  general  good 
indirectly  and  in  slight  degree,  are  frequently  made 
and  never  questioned."81* 

§  89.  Necessity  of  benefit  as  condition  to  right  to 
tax. — Notwithstanding  the  vast  power  which  resides  in 
the  states  to  tax,  all  taxation  must  proceed  upon  the 
theory  that  a  corresponding  benefit  returns  to  the  indi- 
vidual taxed  for  the  property  which  belonged  to  him 
and  which  was  appropriated.  For  example,  in  the  use 
of  a  general  tax  collected  for  the  general  revenues  of 
the  state,  it  is  assumed  that  the  state  is  suffered  to  make 
full  and  adequate  return  in  the  protection  which  the 
state  gives  to  the  individual,  life,  liberty  and  property, 
and  in  the  increase  to  the  value  of  his  possessions  by  the 
uses  to  which  the  state  applied  the  money  contributed. 
In  the  case  of  a  tax  which  is  levied  for  a  special  purpose, 
this  theory  of  return  becomes  emphasized  so  that  for 
the  purpose  of  determining  the  validity  of  the  tax,  it 
becomes  necessary  to  find  an  immediate  specific  benefit 
passing  to  the  individual  taxed.32 

§  90.  Necessity  of  return  of  benefit  to  one  paying 
to  special  fund. — It  is  essential  to  the  validity  of  any 
special  tax  that  there  be  some  return  of  benefit  to  the 
person  paying  the  tax.  That  is  to  say,  if  A's  property 
be  given  to  B  under  the  guise  of  a  tax  for  the  public 

3i»  Booth  v.  Woodbury,  32  Conn.  118, 128. 
82Cooley  Taxation  (2d  ed.),  p.  24. 


185  LEGAL  BASIS  OF  LAWS.  §  91 

need,  then  A  must  be  put  in  a  special  class  receiving  a 
peculiar  benefit  in  lieu  of  his  appropriated  property.  Un- 
der the  insurance  or  compensation  act  of  the  type  of  the 
Ohio  act  the  employer  is  discharged  from  suit  when  he 
has  made  his  contribution  to  the  fund,  which  complies 
with  the  foregoing  principle.  In  other  words,  to  levy 
this  tax  without  giving  A  this  benefit,  would  be  to  ap- 
propriate his  property  without  due  process  of  law. 
Thus  to  pass  a  law  which  would  leave  the  employe  the 
right  to  exercise  the  option  as  to  whether  he  would  ac- 
cept the  insurance  or  continue  in  the  alternative  to 
exercise  his  present  rights  of  action  at  law,  would,  so 
far  as  the  question  of  benefits  are  concerned,  leave  the 
employer  class  exactly  where  it  is  at  present  and  would 
in  consequence  be  the  appropriation  of  his  property 
without  due  process  of  law,  for  in  such  instance  such  a 
law  would  not  only  fail  to  regulate  in  an  economic  man- 
ner the  relation  between  the  employer  and  employe  as 
desired  but  would  also  by  reason  of  continuing  the  op- 
portunity to  sue  under  the  present  methods  for  personal 
injuries,  fail  completely  to  carry  out  the  sole  public  ob- 
ject of  so-called  compensative  legislation;  namely:  the 
economic  welfare  of  the  community. 

§  91.    Whether  conditions  of  equality  and  uniform- 
ity are  satisfied  in  insurance  and  compensation  acts. — A 

state  has  the  power  to  tax  all  callings  or  it  may  tax  one 
or  more.  The  Fourteenth  amendment  to  the  Federal 
constitution  is  satisfied  if  equal  rights  are  accorded  to 
all  in  the  class.  Special  legislation  is  not  prohibited  by 
the  amendment.  In  fact  the  greater  part  of  all  legisla- 
tion is  special  either  in  the  extent  which  it  operates  or 
the  objects  sought  to  be  obtained  by  it.83 

"A  tax  may  be  imposed  only  upon  certain  callings 
and  trades,  for  when  the  State  exerts  its  power  to  tax,  it 

33  Southwestern  Oil  Co.  v.  State,  217  U.  S.  114,  30  Sup.  Ct.  496. 


§  9i        WORKMEN'S  COMPENSATION  AND  INSURANCE.      186 

is  not  bound  to  tax  all  pursuits  or  all  property  that  may 
be  legitimately  taxed  for  governmental  purposes.  It 
would  be  an  intolerable  burden  if  a  state  could  not  tax 
any  property  or  calling  unless,  at  the  same  time,  it  taxed 
all  property  or  all  callings.  Its  discretion  in  such  mat- 
ters is  very  great,  and  should  be  exercised  solely  with 
reference  to  the  general  welfare,  as  involved  in  the  ne- 
cessity of  taxation  for  the  support  of  the  state.  A  state 
may,  in  its  wisdom,  classify  property  for  purposes  of 
taxation,  and  the  exercise  of  its  discretion  is  not  to  be 
questioned  in  a  court  of  the  United  States,  so  long  as  the 
classification  does  not  invade  rights  secured  by  the  Con- 
stitution of  the  United  States."34 

Industrial  insurance  as  already  ordered  is  a  state 
regulation  readjusting  the  relations  of  employer  and 
employe  for  the  economic  welfare  of  the  community. 
But  this  can  not  be  sustained  if  it  amounts  to  no  more 
than  taking  the  property  of  the  employer  and  giving  it 
to  the  employe.  It  is  required  that  there  must  be  a  spe- 
cific benefit  moving  to  the  class  taxed,  for  otherwise  no 
relation  can  be  traced  between  it  and  the  special  pur- 
pose for  which  the  funds  realized  are  to  be  used.  In 
this  instance  the  public  good  is  sought  not  only  in  the 
adequate  protection  of  the  wage-earning  class  but  also 
in  the  prevention  of  the  vast  economic  waste  now  aris- 
ing from  personal  injury  litigation.  Any  law  then  which 
justifies  the  appropriation  of  private  property  for  the 
public  welfare  in  this  respect  must  be  so  drawn  as  in  fact 
to  produce  these  desired  results.  So  far  as  the  employe 
is  concerned,  it  is  clear  that  for  any  rights  of  his  so  ap- 
propriated comes  a  return  in  the  form  of  insurance  com- 
pensation. However,  in  the  scheme  of  industrial  insur- 
ance no  such  direct  benefit  is  traceable  to  the  employer. 
It  remains  then  that  he  be  indirectly  compensated  in  the 

34  Connelly  v.  Union  Sewer  Pipe  Co.,  184  U.  S.  540,  562,  46  L. 
ed.  679,  690,  22  Sup.  Ct.  431,  440. 


l8/  LEGAL  BASIS  OF  LAWS.  §91 

only  way  possible  if  his  property  is  to  be  taken  specific- 
ally to  be  used  to  insure  the  employe  class,  viz:  by  ap- 
propriate protection  against  the  present  evils  of  litiga- 
tion. Thus  one  would  surrender  to  the  state  a  right  of 
action  for  personal  injury  and  receive  insurance,  and 
the  other  would  pay  a  tax  in  exchange  for 'protection 
against  litigation.  As  a  result  each  party  would  have 
received  a  peculiar  benefit  for  the  particular  property 
interest  involuntarily  surrendered  by  it  to  the  common 
welfare. 

The  principles  above  stated  are  laid  down  in  these 
decisions  of  the  court  which  pertain  to  the  distribution 
of  burdens  where  the  interests  of  the  public  and  of  indi- 
viduals are  blended  in  a  common  work  or  service  im- 
posed by  law. 

"There  are  many  instances  where  parties  are  com- 
pelled to  perform  certain  acts  and  to  bear  certain  ex- 
penses, when  the  public  is  interested  in  the  acts  which 
are  performed  as  much  as  the  parties  themselves.  Thus 
in  opening,  widening  and  improving  streets,  the  owners 
of  adjoining  property  are  often  compelled  to  bear  the  ex- 
penses, or  at  least  a  portion  of  them,  notwithstanding 
the  work  done  is  chiefly  for  the  benefit  of  the  public.  So, 
also,  in  the  draining  of  marsh  lands,  the  public  is  directly 
interested  in  removing  the  causes  of  malaria,  and  yet  the 
expense  of  such  labor  is  usually  thrown  upon  the  own- 
ers of  the  property.  Quarantine  regulations  are  adopted 
for  the  protection  of  the  public  against  the  spread  of 
disease,  yet  the  requirement  that  the  vessel  examined 
shall  pay  for  the  examination  is  a  part  of  all  quarantine 
systems.  Morgan's  L.  &  T.  R.  &  S.  S.  Co.  v.  Louisiana, 
118  U.  S.  455,  466,  30  Law  ed.  237,  242.  So,  the  ex- 
pense of  a  compulsory  examination  of  a  railroad 
engineer,  to  ascertain  whether  he  is  free  from  color 
blindness,  has  been  held  to  be  properly  chargeable 
against  the  railroad  company.  Nashville,  C.  &  St.  L.  R. 


§  92       WORKMEN'S  COMPENSATION  AND  INSURANCE.      188 

Co.  v.  Alabama,  128  U.  S.  96,  101,  32  L.  ed.  352,  354. 
So,  where  work  is  done  in  a  particular  county  for  the 
benefit  of  the  public,  the  cost  is  oftentimes  cast  upon 
the  county  itself  instead  of  upon  the  whole  state.  Thus, 
in  County  of  Mobile  v.  Kimball,  102  U.  S.  691,  28  L.  ed. 
238,  it  was  held  that  a  provision  for  the  issuing  of  bonds 
by  a  county  in  Alabama  could  not  be  declared  invalid, 
although  it  imposed  upon  one  county  the  expense  of  an 
improvement  in  which  the  whole  state  was  interested. 
In  such  instances  where  the  interests  of  the  public  and 
of  individuals  are  blended  in  any  work  or  service  im- 
posed by  law,  whether  the  cost  shall  be  thrown  entirely 
upon  the  individuals  or  upon  the  state,  or  be  appor- 
tioned between  them,  is  matter  of  legislative  direction.35 

§  92.  Whether  contract  clauses  of  constitutions  are 
violated — Uniform  operation  of  laws. — That  the  con- 
tracts contemplated  by  these  acts  are  based  upon  a  valid 
consideration  is  shown  by  reference  to  the  "Voluntary 
Relief  Department"  cases  involving  railroad  men.  In 
this  class  of  cases  an  employe  of  a  railroad  company  ap- 
plies for  admission  to  an  association  composed  of  the 
company  and  a  portion  of  its  employes,  and  when  ad- 
mitted contracts  that  the  company  may  deduct  from  his 
wages  a  certain  insignificant  sum  each  month  for  the 
purpose  of  forming,  with  other  like  contributions  by 
other  employe  members,  together  with  sums  contributed 
by  the  company,  a  relief  fund  for  the  benefit  of  the  em- 
ployes in  case  of  sickness,  accident  or  death.  The  con- 
tract provides  that  in  case  of  accident,  the  acceptance  by 
the  employe  of  relief  from  the  fund  relieves  the  company 
from  liability  for  damages.  These  contracts  when  vol- 
untarily and  understandingly  entered  into  have  been 

35  Charlotte,  etc.,  R.  Co.  v.  Gibbs,  142  U.  S.  386,  12  Sup.  Ct.  255, 
35  L.  ed.  105L 


189  LEGAL  BASIS  OF  LAWS.  §  92 

held  to  be  based  upon  a  valid  consideration,  to  possess 
mutuality  and  to  be  not  contrary  to  public  policy.36 

In  respect  to  the  sufficiency  and  legality  of  the  notice 
that  the  employer  who  has  paid  the  premiums  required 
by  the  statute  has  posted  in  and  about  his  place  of  busi- 
ness a  copy  of  the  state  treasurer's  receipt,  to  the  effect 
that  he  has  paid  said  premiums  is  amply  supported  by 
the  road  law  cases.  In  these  cases  it  has  been  held  that 
such  a  law  declares  a  rule  of  evidence  whereby  a  waiver, 
on  the  part  of  the  landowner,  of  his  right  to  compensa- 
tion, may  be  established,  and  does  not  conflict  with  the 
constitution  relating  to  the  inviolability  of  private  prop- 
erty. The  rule  contained  in  this  proviso  can  not  be  re- 
garded either  as  a  statute  of  limitations,  whereby  a  right 
secured  by  the  constitution  is  barred  immediately  upon 
the  accruing  thereof,  or  as  a  statute  declaring  the  for- 
feiture of  private  property.  Relief  in  equity,  by  restrain- 
ing the  appropriation  of  private  property  for  a  public 
road  under  said  statutes,  will  not  be  granted  on  the 
ground  that  compensation  therefor  has  not  been  paid 
to  the  owner  in  money,  in  a  case  where  the  owner,  hav- 
ing actual  notice  of  the  proceedings  in  which  the  prop- 
erty is  sought  to  be  taken,  and  of  the  time  and  place  of 
the  view,  neglected  or  failed  to  present  his  application 
for  compensation,  in  writing,  to  the  viewers,  and  where 
it  is  not  shown  that  the  default  was  occasioned  by  in- 
evitable casualty,  or  by  other  circumstances  against 
which  reasonable  precaution  could  not  have  provided.87 

On  the  question  of  the  extent  the  legislature  may  go 
in  the  exercise  of  its  police  power  in  regulating  the  rela- 
tion of  employer  and  employe,  without  violating  the  pro- 
visions of  the  Fourteenth  Amendment  of  the  Constitu- 
tion of  the  United  States  by  abridging  the  privileges  or 

»e  Pittsburg,  etc.,  R.  Co.  v.  Cox,  55  Ohio  St.  497,  45  N.  E.  641. 
See  generally,  §  79. 

-*7  Reckner  v.  Warner,  22  Ohio  St.  275. 


§  93       WORKMEN'S  COMPENSATION  AND  INSURANCE.      190 

immunities  of  the  citizens,  or  by  depriving  them  of  their 
property,  or  by  denying  to  them  the  equal  protection  of 
the  laws,  the  Supreme  Court  of  the  United  States  in 
construing  an  eight-hour  law  in  the  light  of  the  Four- 
teenth Amendment  has  said: 

"In  passing  upon  the  validity  of  state  legislation 
under  that  amendment,  this  court  has  not  failed  to  recog- 
nize the  fact  that  the  law  is,  to  a  certain  extent,  a  pro- 
gressive science;  that  in  some  States  methods  of  pro- 
cedure which,  at  the  time  the  Constitution  was  adopted, 
were  deemed  essential  to  the  protection  and  safety  of 
the  people,  or  to  the  liberty  of  the  citizen,  have  been 
found  to  be  no  longer  necessary;  that  restrictions  which 
had  formerly  been  laid  upon  the  conduct  of  individuals 
or  of  classes  of  individuals,  had  proved  detrimental  to 
their  interests;  while,  upon  the  other  hand,  certain  oth- 
er classes  of  persons,  particularly  those  engaged  in  dan- 
gerous or  unhealthy  employments,  have  been  found  to 
be  in  need  of  additional  protection,"  but  this  power  of 
change  is  limited  by  the  "fundamental  principles  laid 
down  in  the  Constitution,  to  which  each  member  of  the 
Union  is  bound  to  accede  as  a  condition  of  its  admis- 
sion as  a  State."38 

§  93.  Insurance  and  compensation  laws  a  proper 
exercise  of  police  powers. — The  Supreme  Court  of  the 
United  States  has  most  clearly  defined  the  conditions 
under  which  the  conduct  of  business  or  employments 
warrants  the  exercise  of  legislative  power  of  any  state 
to  pass  proper  police  measures  to  regulate  the  same  for 
the  purpose  of  protecting  society  as  a  whole,  in  speaking 
through  Chief  Justice  Waite,  in  the  epoch-making  case 
of  Munn  v.  Illinois.39 

This   case   involved  the   constitutionality   of   a   law 

38  Holden  v.  Hardey,  169  IT.  S.  366,  42  L.  ed.  780. 
»»  94  U.  S.  113,  24  L.  ed.  77. 


19 1  LEGAL  BASIS  OF  LAWS.  §  93 

passed  by  the  legislature  of  Illinois  to  regulate  the  rates 
which  grain  elevators  might  charge.  This  act  fixed  a 
maximum  rate  which  grain  elevators  might  charge  the 
public  for  storing  grain.  Said  the  Chief  Justice:  'The 
state  is  a  social  compact  by  which  the  whole  people 
covenants  with  each  citizen,  and  each  citizen  with  the 
whole  people,  that  all  shall  be  governed  by  certain  laws 
for  the  common  good. 

"From  this  source  come  the  police  powers,  which, 
as  said  by  Chief  Justice  Taney  in  the  License  Cases, 
5  How.  583,  12  L.  ed.  291,  'are  nothing  more  or  less 
than  the  powers  of  government  inherent  in  every  sover- 
eignty, *  *  *  that  is  to  say,  *  *  *  the  power 
to  govern  men  and  things.'  Under  these  powers  the 
government  regulates  the  conduct  of  its  citizens  one 
towards  another,  and  the  manner  in  which  each  shall  use 
his  own  property,  when  such  regulation  becomes  neces- 
sary for  the  public  good.  In  their  exercise  it  has  been 
customary  in  England  from  time  immemorial,  and  in 
this  country  from  its  first  colonization,  to  regulate  fer- 
ries, common  carriers,  hackmen,  bakers,  millers,  wharf- 
ingers, innkeepers,  etc.,  and  in  so  doing  to  fix  a  maxi- 
mum of  charge  to  be  made  for  services  rendered,  accom- 
modations furnished,  and  articles  sold.  To  this  day 
statutes  are  to  be  found  in  many  of  the  states  upon 
some  or  all  of  these  subjects;  and  we  think  that  it  has 
never  yet  been  successfully  contended  that  such  legis- 
lation came  within  any  of  the  constitutional  prohibitions 
against  interference  with  private  property.  With  the 
5th  Amendment  in  force,  Congress,  in  1820,  conferred 
power  upon  the  city  of  Washington  'to  regulate  *  *  * 
the  rates  of  wharfage  at  private  wharves,  *  *  the 

sweeping  of  chimneys,  and  to  fix  the  rate  of  fees  there- 
for, *  *  *  and  the  weight  and  quality  of  bread,' 
3  Stat.  at  L.  587,  Chap.  104,  Sec.  7;  and  in  1848,  'to  make 
all  necessary  regulations  respecting  hackney  carriages, 


§  93       WORKMEN'S  COMPENSATION  AND  INSURANCE.      192 

and  the  rates  of  fare  of  the  same,  and  the  rates  of  haul- 
ing by  cartmen,  wagoners,  carmen,  and  draymen,  and 
the  rates  of  commission  of  auctioneers.'  9  Stat.  at  L. 
224,  Chap.  42,  Sec.  2. 

"From  this  it  is  apparent  that,  down  to  the  time  of 
the  adoption  of  the  14th  Amendment,  it  was  not  sup- 
posed that  statutes  regulating  the  use,  or  even  the  price 
of  the  use,  of  private  property  necessarily  deprived  an 
owner  of  his  property  without  due  process  of  law.  Un- 
der some  circumstances  they  may,  but  not  under  all. 
The  amendment  does  not  change  the  law  in  this  partic- 
ular; it  simply  prevents  the  states  from  doing  that 
which  will  operate  as  such  a  deprivation.  *  *  * 

Property  does  become  clothed  with  a  public  inter- 
est when  used  in  a  manner  to  make  it  of  public  conse- 
quence, and  affect  the  community  at  large.  When, 
therefore,  one  devotes  his  property  to  a  use  in  which  the 
public  has  an  interest,  he  in  effect  grants  to  the  public 
an  interest  in  that  use,  and  must  submit  to 'be  controlled 
by  the  public  for  the  common  good,  to  the  extent  of  the 
interest  he  has  thus  created.  He  may  withdraw  his 
grant  by  discontinuing  the  use ;  but,  so  long  as  he  main- 
tains the  use,  he  must  submit  to  the  control.  *  *  * 

"Neither  is  it  a  matter  of  any  moment  that  no  pre- 
cedent can  be  found  for  a  statute  precisely  like  this.  It 
is  conceded  that  the  business  is  one  of  recent  origin,  that 
its  growth  has  been  rapid,  and  that  it  is  already  of  great 
importance.  And  it  must  also  be  conceded  that  it  is  a 
business  in  which  the  whole  public  has  a  direct  and  posi- 
tive interest.  It  presents,  therefore,  a  case  for  the  ap- 
plication of  a  long-known  and  well-established  principle 
in  social  science,  and  this  statute  simply  extends  the  law 
so  as  to  meet  this  new  development  of  commercial  prog- 
ress. There  is  no  attempt  to  compel  these  owners  to 
grant  the  public  an  interest  in  their  property,  but  to  de- 


193  LEGAL  BASIS  OF  LAWS.  §  94 

clare  their  obligations,  if  they  use  it  in  this  particular 
manner." 

It  follows  that  the  existing  conditions  relative  to  the 
effects  of  personal  injuries  which  workmen  receive  in 
the  due  course  of  their  employment,  upon  their  depend- 
ents and  society  as  a  whole,  come  within  the  domain  of 
applicability  of  the  police  power  of  the  state  and  that  the 
remedy  of  obligatory  industrial  insurance,  is  not  in  con- 
flict with  the  constitutional  limitations  of  the  several 
state  or  Federal  Constitutions. 

§  94.  Whether  laws  open  to  objection  of  lack  of  uni- 
formity of  operation  and  equality  of  protection — Classi- 
fication.— An  objection  commonly  urged  against  com- 
pensation laws  limited  to  employers  having  more  than  a 
stated  number  of  employes,  is  that  they  are,  by  that  very 
fact,  without  uniform  operation  within  the  meaning  of 
constitutions  making  this  a  condition  to  a  valid  statute. 
The  objection  has  been  held  without  merit  in  the  case  of 
a  statute  which  required  mine  inspection  in  mines  where 
more  than  five  men  were  employed  at  any  one  time.40 

Such  a  classification  is  justified  by  the  rule  of  reason. 
"It  would  be  almost  a  physical  impossibility  to  cover  all 
employments  at  the  start,  as  for  example,  domestic 
service,  casual  employments  and  farmers.  European 
countries  in  the  beginning  placed  similar  limitations  in 
the  application  of  their  acts  and  later  removed  them. 

'This  is  a  species  of  classification  which  the  legis- 
lature is  at  liberty  to  adopt,  provided  it  is  not  wholly 
arbitrary  or  unreasonable,  as  it  was  in  Getting  v.  Kan- 
sas City  Stock  Yards  Co.,  183  U.  S.  79,  in  which 
an  act  defining  what  should  constitute  public  stock  yards 
and  regulating  all  charges  connected  therewith  was  held 
to  be  unconstitutional,  because  it  applied  only  to  one 
particular  company,  and  not  to  other  companies  or  cor- 

<o  St.  Louis,  etc.,  Coal  Co.  v.  Illinois,  185  U.  S.  203,  46  L.  ed.  872. 

13— BOTDWC 


§  94       WORKMEN'S  COMPENSATION  AND  INSURANCE.      194 

porations  engaged  in  a  like  business  in  Kansas,  and 
thereby  denied  to  that  Company  the  equal  protection  of 
the  laws.  In  the  case  under  consideration  there  is  no 
attempt  arbitrarily  to  select  one  mine  for  inspection,  but 
only  to  assume  that  mines,  which  are  worked  upon  so 
small  a  scale  as  to  require  only  five  operators,  would 
not  be  likely  to  need  the  careful  inspection  provided  for 
the  larger  mines,  where  the  workings  were  carried  on 
upon  a  larger  scale  or  at  a  greater  depth  from  the  sur- 
face, and  where  a  much  larger  force  would  be  necessary 
for  their  successful  operation.  It  is  quite  evident  that  a 
mine  which  is  operated  by  only  five  men  could  scarcely 
have  passed  the  experimental  stage,  or  that  cautions 
necessary  in  the  operation  of  coal  mines  of  ordinary 
magnitude  would  be  required  in  such  cases.  There  was 
clearly  reasonable  foundation  for  discrimination  here."41 

The  question  is  squarely  met  in  a  recent  case  con- 
struing a  workmen's  compensation  act.  In  this  case  the 
court  said: 

"But  it  is  said  that  there  is  no  proper  classification 
here  and  hence  that  the  law  is  fatally  discriminating  in 
its  character.  The  two  defenses  are  preserved  intact  to 
employers  who  elect  to  come  under  the  law  and  taken 
away  from  those  who  do  not  so  elect. 

"The  rules  governing  classification  are  familiar  and 
are  in  brief  as  follows :  It  must  be  based  on  substantial 
distinctions  which  make  real  differences,  it  must  be  ger- 
mane to  the  purposes  of  the  law;  it  must  not  be  limited 
to  existing  conditions  only;  and  must  apply  equally  to 
each  member  of  the  class.  It  seems  to  us  that  this  class- 
ification fully  meets  these  requirements.  Certainly 
there  will  be  very  real  differences  between  the  situation 

4i  St.  Louis,  etc.,  Coal  Co.  v.  Illinois,  185  U.  S.  203,  46  L.  ed. 
872.  See  also  McLean  v.  Arkansas,  211  U.  S.  539,  29  Sup.  Ct 
206;  Williams  v.  Arkansas,  217  U.  S.  79;  Angel  v.  O'Malley,  219  U, 
S.  129;  Borgnis  v.  Falk  Co.,  149  Wis.  327,  133  N.  W.  209. 


LEGAL  BASIS  OF  LAWS.  .         §  94 

of  the  employer  who  elects  to  come  under  the  law  and 
the  employer  who  does  not.  *  *  * 

"It  seems  to  us  that  this  question  must  be  answered 
in  the  affirmative,  and  if  it  be  so  answered  there  can  be 
no  doubt  as  to  the  legitimacy  of  the  classification,  for 
the  reason  that  it  is  quite  apparent  that  the  other  condi- 
tions of  valid  classification  are  fully  satisfied.  There  can 
be  no  doubt  that  the  classification  is  germane  to  the  pur- 
pose of  the  law,  and  it  is  not  limited  in  its  application  to 
existing  conditions  only,  and  applies  equally  to  each 
member  of  the  class. 

"The  minor  classification  by  which  the  fellow-ser- 
vant defense  is  preserved  to  all  employers  employing 
less  than  four  employes  in  a  common  employment  is 
also  attacked  as  having  no  proper  legal  basis,  but  it 
seems  to  us  that  the  grounds  of  classification  here  are 
more  persuasive  even  than  in  the  case  just  discussed. 
The  man  who  is  employed  with  one  or  two  other  men 
in  a  given  employment  in  all  reasonable  probability 
knows  their  characteristics  well  and  will  probably  be 
with  them  a  great  part  of  the  time.  He  will  have 
ample  opportunity  to  form  a  just  judgment  as  to  the  risk 
of  injury  from  their  negligence  which  he  will  run  if  he 
works  with  them,  and  will  be  enabled  to  shape  his  own 
conduct  accordingly;  but  the  man  who  is  one  of  a  large 
number  of  men,  many  of  whom  he  never  sees,  and  some 
of  these  latter  having  duties  to  perform  in  distant  places, 
upon  the  due  performance  of  which  his  own  safety  de- 
pends, has  no  opportunity  to  acquire  any  accurate 
knowledge  of  the  characteristics  of  many  of  his  fellow- 
workmen  and  can  not  intelligently  decide  what  risk  he 
runs  at  the  hands  of  such  distant  and  unknown  employes. 
The  difference  in  situation  is  not  merely  fanciful — it  is 
real.  In  one  case  the  employe  knows  or  has  the  means 
of  knowing  what  to  expect  from  his  co-laborers,  in  the 
other  case  he  has  neither  the  knowledge  nor  the  means 


§  95       WORKMEN'S  COMPENSATION  AND  INSURANCE.      196 

of  knowledge.  Of  course  there  will  be  cases  on  the 
border  line  where  the  difference  in  situation  will  be  very 
slight  or  perhaps  entirely  non-existent.  There  will  prob- 
ably be  no  practical  difference  between  the  situation  of 
the  man  who  is  one  of  four  or  five  employes  in  a  given 
employment  and  the  situation  of  the  man  who  is  one  of 
three,  but  this  does  not  militate  against  the  legitimacy 
of  the  classification:  this  is  a  necessary  defect  in  all 
cases  of  classification  based  upon  numbers.  The  question 
is  not  whether  there  may  be  some  on  one  side  of  the  line 
whose  situation  is  practically  the  same  as  that  of  some 
on  the  other  side,  but  whether  there  is  a  'distinction  be- 
tween the  classes  as  classes,  whether  there  are  char- 
acteristics which,  in  a  greater  degree,  persist  through 
the  one  class  than  in  the  other  which  justify  legal  dis- 
crimination between  them.'  "42 

§  95.  Legislature  in  its  enactments  limited  only  by 
state  and  Federal  constitutions. — The  legislature  of  a 
State  can  do  any  legislative  act  that  is  not  prohibited  by 
the  State  or  Federal  Constitution,  and  without  and  be- 
yond the  limitations  and  restrictions  contained  in  those 
instruments,  the  law-making  power  of  the  state  is  as 
absolute,  omnipotent  and  uncontrollable  as  that  of  the 
English  parliament.  Within  these  limitations  the  legis- 
lature may  pass  any  law  which  could  be  enacted  in  the 
most  despotic  government  or  which  the  people  could 
enact  in  their  primary  capacity.43 

This  principle  would  certainly  seem  sufficient  to 
warrant  a  legislature — with  the  power  to  act  on  the 

«  Borgnis  v.  Falk  Co.,  149  Wis.  327, 133  N.  W.  209.  See  also  State 
v.  Evans,  130  Wis.  381. 

48  People  v.  Hill,  163  111.  186,  46  N.  E.  796;  Fireman's  Benev. 
Soc.  v.  Lovmsbury,  21  111.  511;  Munn  v.  People,  69  111.  80;  Mason 
v.  Wait,  4  Scam.  (111.)  127;  People  v.  Hoffman,  116  111.  587;  Chicago 
&  St  Louis  R.  R.  Co.  v.  Warrington,  92  111.  157;  Richards  v.  Ray- 
mond, 92  111.  612 ;  People  v.  Wall,  88  111.  75 ;  Hawthorne  v.  People,  109 
111.  302. 


197  LEGAL  BASIS  OF  LAWS.  §  96 

main  subject — to  fix  the  premiums  to  be  paid,  upon  the 
basis  of  the  hazard  in  the  different  employments  and 
arbitrarily  to  make  the  compensation  to  the  injured 
workman  a  certain  precentage  of  his  wages. 

§  96.  Nature  of  administration  of  compensation 
acts. — An  insurance  or  compensation  act  should  not  con- 
found the  executive  and  judicial  functions  of  the  state. 
It  is  of  the  highest  importance  on  the  ground  of  expedi- 
ency that  these  provisions  shall  take,  as  far  as  possible, 
the  form. of  administrative  measures  rather  than  those 
of  a  judicial  nature.  In  the  administration  of  an  indus- 
trial insurance  act,  it  is  necessary  in  the  interest  of  econ- 
omy to  put  into  operation  summary  methods  of  pro- 
cedure in  so  far  as  they  are  in  harmony  with  justice. 
At  the  same  time,  it  is  necessary  to  use  as  little  as  pos- 
sible those  judicial  methods  which  experience  has  shown 
result  in  such  great  economic  waste  in  the  adjudication 
of  personal  injury  suits.  In  the  second  place:  If  the 
final  determination  of  a  controversy  arising  under  an 
industrial  insurance  act  must  be  by  means  of  a  trial  by 
jury,  then  the  much  hoped  for  saving  in  economy  would 
be  lost.  The  7th  Amendment  of  the  Constitution  of  the 
United  States  reads  as  follows:  "In  suits  at  common 
law  where  the  value  in  controversy  shall  exceed  $20, 
the  right  of  trial  by  jury  shall  be  preserved,  and  no 
fact  tried  by  a  jury  shall  be  otherwise  re-examined  in 
any  court  of  the  United  States,  than  according  to  the 
rules  of  the  common  law." 

It  follows,  therefore,  from  the  7th  Amendment,  that 
in  case  a  controversy  arising  out  of  an  industrial  insur- 
ance act  can  be  classified  as  an  executive  function  of  the 
state,  then  the  7th  Amendment  has  no  application,  for 
the  reason  that  it  is  limited  in  its  application  by  its  ex- 
press provisions  to  judicial  proceedings.  The  inquiry  at 
this  point  is  whether  the  administration  of  the  act  is  an 


§  97       WORKMEN'S  COMPENSATION  AND  INSURANCE.      198 

executive  or  judicial  function  janti  if  a  judicial  function 
does  it  fall  within  that  class  of  actions  which  receive  a 
trial  by  jury. 

§  97.  Nature  of  administration  of  compensation 
acts  whether  executive  or  judicial — Due  process. — A 
consideration  of  the  question  whether  these  acts  call  into 
exercise  executive  or  judicial  functions  involves  an  in- 
vestigation of  the  limitations  created  by  the  5th  Amend- 
ment to  the  Federal  Constitution,  with  respect  to  "due 
process  of  law."  This  provision  is  deemed  to  apply  not 
only  to  the  power  of  the  legislative,  but  also  to  the 
judicial  branches  of  the  state  government.  This  amend- 
ment provides  that: 

"No  person  shall  be  deprived  of  life,  liberty,  or  prop- 
erty, without  due  process  of  law." 

The  phrase  "due  process  of  law"  has  application  in 
our  problem,  not  only  to  the  rights  created  by  the  act, 
but  also  rather  to  the  remedy  provided  by  the  act  to 
make  the  putting  the  same  into  effective  operation. 

The  executive  arm  of  every  state  government  dis- 
poses of  many  problems  which,  considered  by  them- 
selves, are  purely  judicial  in  character.  This  principle, 
as  the  authorities  show,  is  illustrated  in  the  following 
examples,  viz.:  (1)  In  the  levying  of  special  assess- 
ments ;  (2)  in  the  exercise  of  the  power  of  eminent  do- 
main; (3)  in  the  collection  of  various  taxes;  (4)  in  the 
adjudication  of  those  controversies  (of  purely  judicial 
nature)  which  deal  with  questions  of  account  between 
tax  collectors  and  the  state,  in  which  the  state  may 
finally  determine  all  issues  through  its  administrative 
agencies.  Says  the  Supreme  Court  of  the  United 
States: 

"Though  'due  process  of  law'  generally  implies  and 
includes  actor,  reus,  judex,  regular  allegations,  oppor- 
tunity to  answer,  and  a  trial  according  to  some  settled 


199  LEGAL  BASIS  OF  LAWS.  §  97 

course  of  judicial  proceedings  (2  Inst.  47,  50;  Hoke  v. 
Henderson,  15  N.  C.  (4  Dev.  L.)  15,  25  Am.  Dec.  677; 
Taylor  v.  Porter,  4  Hill  146,  40  Am.  Dec.  274;  Vanzant 
v.  Waddel,  2  Yerg.  260;  Bank  of  State  v.  Cooper,  2 
Yerg.  599,  24  Am.  Dec.  517;  Jones  v.  Perry,  10  Yerg.  59, 
30  Am.  Dec.  430;  Greene  v.  Briggs,  1  Curt.  C.  C.  311, 
Fed.  Cas.  No.  5,764),  yet  this  is  not  universally  true. 
There  may  be,  and  we  have  seen  that  there  are  cases 
under  the  law  of  England  after  Magna  Charta  and 
as  it  was  brought  to  this  country  and  acted  on 
here,  in  which  process,  in  its  nature  final,  issues  against 
the  body,  lands,  and  goods  of  certain  public  debtors 
without  any  such  trial;  and  this  brings  us  to  the  question 
whether  those  provisions  of  the  Constitution  which  re- 
late to  the  judicial  power  are  incompatible  with  these 
proceedings. 

"That  the  auditing  of  the  accounts  of  a  receiver  of 
public  moneys  may  be,  in  an  enlarged  sense,  a  judicial 
act,  must  be  admitted,  so  are  all  those  administrative 
duties  the  performance  of  which  involves  an  inquiry  into 
the  existence  of  facts  and  the  application  to  them  of 
rules  of  law.  In  this  sense  the  act  of  the  President  in 
calling  out  the  militia  under  the  act  ot  1795  (12  Wheat. 
19,  6  L.  ed.  537,)  or  a  commissioner  who  makes  a  cer- 
tificate for  the  extradition  of  a  criminal,  under  a  treaty, 
is  judicial.  But  it  is  not  sufficient,  to  bring  such  matter 
under  the  judicial  power,  that  they  involve  the  exercise 
of  judgment  upon  law  and  fact.  *  *  *  The  power 
to  collect  and  disburse  revenue  and  to  make  all  laws  that 
shall  be  necessary  and  proper  for  carrying  that  power 
into  effect,  includes  all  known  and  appropriate  means 
of  effectually  collecting  and  disbursing  that  revenue,  un- 
less some  such  means  should  be  forbidden  in  some  part 
of  the  Constitution.  The  power  has  not  been  exhausted 
by  the  receipt  of  the  money  by  the  collector.  Its  pur- 
pose is  to  raise  money  and  use  it  in  payment  of  the  debts 


§  97       WORKMEN'S  COMPENSATION  AND  INSURANCE.     200 

of  the  government;  and  whoever  may  have  possession 
of  the  public  money,  until  it  is  actually  disbursed,  the 
power  to  use  those  known  and  appropriate  means  to 
secure  its  due  application  continues."44 

The  right  of  trial  by  jury  does  not  apply  to  con- 
demnation proceedings.  The  jury  trial  can  only  be 
claimed  -as  a  constitutional  right  where  the  subject  is 
judicial  in  its  character.  The  exercise  of  the  right  of 
eminent  domain  stands  on  the  same  ground  with  the 
power  of  taxation.  Both  are  emanations  of  the  law- 
making  power.  They  are  attributes  of  political  sover- 
eignty, for  the  exercise  of  which  the  legislature  is  under 
no  necessity  to  address  itself  to  the  courts.  In  impos- 
ing a  tax,  or  in  appropriating  the  property  of  a  citizen, 
or  a  class  of  citizens,  for  a  public  purpose,  with  a  proper 
provision  for  compensation,  the  legislative  act  is  itself 
due  process  of  law;  though  it  would  not  be  if  it  should 
undertake  to  appropriate  the  property  of  one  citizen  for 
the  use  of  another,  or  to  confiscate  the  property  of  one 
person  or  a  class  of  persons,  or  a  particular  description 
of  property,  upon  some  view  of  public  policy,  where  it 
could  not  be  said  to  be  taken  for  a  public  use.45 

The  principle  is  the  same  in  the  matter  of  the  levy 
and  collection  of  ordinary  taxes  in  a  summary  manner.46 

"The  mode  of  assessing  taxes  in  the  states,  by  the 
Federal  government,  and  by  all  governments,  is  neces- 
sarily summary,  that  it  may  be  speedy  and  effectual. 
By  summary  is  not  meant  arbitrary  or  inequal  or  illegal. 

44  Murray  v.  Hoboken  Land,  etc.,  Co.,  18  How.  (U.  S.)  272,  15 
L  cd.  372. 

*5  Lewis  Eminent  Domain  (2d  ed.),  §  311.  In  re  New  York 
Central  R.  Co.,  66  N.  Y.  407. 

4«  Kelly  v.  Pittsburg,  104  U.  S.  80,  26  L.  ed.  659 ;  Palmer  v.  Me- 
Mahon,  133  U.  S.  699,  33  L.  ed.  776,  10  Sup.  Ct.  324 ;  Spencer  v.  Mer- 
chant, 125  U.  S.  345,  31  L.  ed.  763,  8  Sup.  Ct.  921 ;  Watson  v.  Nevln, 
128  U.  S.  578,  32  L.  ed.  544,  9  Sup.  Ct.  192;  Hagar  v.  Reclamation 
Dist.,  Ill  U.  S.  701,  28  L.  ed.  569,  4  Sup.  Ct.  663. 


2OI  LEGAL  BASIS  OF  LAWS.  §  96 

It  must,  under  our  Constitution,  be  lawfully  done.  But 
that  does  not  mean,  nor  does  the  phrase  'due  process  of 
law'  mean,  by  a  judicial  proceeding.  The  nation  from 
whom  we  inherit  the  phrase  'due  process  of  law'  has 
never  relied  upon  the  courts  of  justice  for  the  collection 
of  her  taxes,  though  she  passed  through  a  successful 
revolution  in  resistance  to  unlawful  taxation."47 

The  principle  is  satisfied  if  the  law  provides  for  a 
board  of  revision  authorized  to  hear  complaints  respect- 
ing the  justice  of  the  assessment,  and  prescribes  the 
time  during  which  and  the  place  where  such  complaints 
may  be  made.48 

§  98.     Deprivation  of  right  to  trial  by  jury. — The 

question  whether  these  statutes  operate  as  a  denial  of 
the  right  to  trial  by  jury  within  the  constitutional  sense 
is  squarely  met  by  the  Supreme  Court  of  Montana  in 
passing  upon  the  compensation  law  of  that  state.  After 
showing  that  the  constitution  does  not  prevent  a  change 
in  the  system  of  actions  for  negligence,  the  court  says: 
"The  right  of  trial  by  jury  which  is  secured  and  pro- 
tected by  the  constitution,  refers  to  the  trial  of  cases, 
actions,  or  suits  at  law  (see  Koppikus  v.  Capitol  Com- 
missioners, 16  Cal.  249),  and  has  no  reference  to  claims 
against  an  indemnity  fund,  such  as  are  provided  for  by 
this  act,  or  demands  by  the  State  auditor  for  occupation 
taxes.  There  is  not  anything  in  the  constitution  guar- 
anteeing a  right  of  trial  by  jury  in  case  of  demand  for  a 
license  or  occupation  tax.  The  adjustment  of  claims 
under  the  act  is  an  administrative  function  and  not  a 
judicial  proceeding,  and  it  is  only  in  certain  cases  falling 
under  the  latter  designation  that  trial  by  jury  is  guaran- 
teed by  the  constitution.  'Due  process  of  law'  does  not 

47  McMillen  v.  Anderson,  95  TJ.  S.  37,  24  L.  ed.  335. 

48  Hagar  v.  Reclamation  District,  111  U.  S.  701,  28  L.  ed.  569,  4 
Sup.  Ct.  663. 


§  98       WORKMEN'S  COMPENSATION  AND  INSURANCE.      202 

necessarily  require  a  jury  trial."     (Montana  Co.  v.  St. 
Louis  Min.  Co.,  152  U.  S.  160.)49 

The  principles  are  well  summarized  by  Mr.  Robert  J. 
Carey.  In  his  view  the  decisions  do  not  require  trial 
by  jury  for  the  purpose  of  adjudicating  a  claim  made  by 
an  employe  against  a  government  agency,  for  the  pay- 
ment out  of  a  tax  fund  of  a  stipulated  sum  alleged  to  be 
due  such  employe  as  insurance.  "Such  right  so  vested 
in  the  employe  is  not  a  new  private  right  against  his 
employer.  Thus  it  bears  no  resemblance  to  new  sub- 
stantive private  rights  akin  to  common-law  rights, 
though  created  by  statute.  It  is  rather  a  right  to  share 
in  a  tax  fund,  and  thus  is  necessarily  a  claim  against 
the  government,  though  the  details  of  the  law  might  be 
such  that  the  claim  is  to  be  made  against  a  government 
agency,  as,  for  instance,  a  bureau,  commission,  or  asso- 
ciation. The  fund  against  which  such  claim  is  made  is 
collected  admittedly  in  a  summary  proceeding;  the  right 
to  an  interest  in  such  fund  arises  not  for  the  purpose  of 
recoupment  in  damages  on  account  of  a  private  wrong 
done  the  employe,  but  solely  because  the  employe,  being 
a  victim  of  a  prevalent  evil,  is  to  be  protected  by  the 
state  as  a  member  of  a  class  of  society.  The  right,  in- 
deed, i$  in  one  respect  akin  to  the  right  of  a  landowner 
in  an  eminent  domain  suit  to  compensation  due  him  in 
lieu  of  his  property  appropriated.  In  the  present  in- 
stance the  employe's  chose  in  action  against  his  employer 
for  a  person  wrong  suffered  is  taken  from  him,  and  in 
lieu  of  which  he  is  paid  a  benefit  for  the  appropriation 
of  such  right.  Under  such  circumstances,  even  though 
a  controversy  arising  over  the  payment  of  a  fund  take 
judicial  form,  we  think  it  within  the  power  of  the  gov- 
ernment to  determine  the  character  of  the  remedy."50 

4»  Northwestern  Imp.  Co.  v.  Cunningham,  —  Mont  — ,  119  Pac. 
554,  citing  Montana  Co.  v.  St.  Louis  Min.  Co.,  152  U.  S.  160. 

oo  Brief  on  Power  of  Congress  in  respect  of  Industrial  Insurance 


2O3  LEGAL  BASIS  OF  LAWS.  §  99 

§  99.  Whether  act  may  be  optional. — It  is  well  set- 
tled by  the  decisions  of  the  Supreme  Court  of  the  United 
States  that  if  an  act  mandatory  in  form  can  be  constitu- 
tional, it  will  likewise  be  constitutional  if  it  is  voluntary 
in  form.51 

This  conclusion  was  reached  in  the  bank  deposit 
guarantee  fund  cases  which  came  to  the  court  from  the 
states  of  Oklahoma,  Nebraska  and  Kansas.  The  law 
of  the  latter  state  was  voluntary  in  form  in  certain  of  its 
vital  features.  The  laws  of  the  former  were  obligatory 
in  form.  Speaking  of  these  differences  Mr.  Justice 
Holmes  said: 

"The  most  important  of  these  is  that  contribution  to 
the  fund  is  not  absolutely  required.  On  this  ground  it 
is  said,  and  was  thought  by  the  Circuit  Judge,  that  the 
law  could  not  be  justified  under  the  police  power.  We 
cannot  agree  to  such  a  limitation.  If,  as  we  have  de- 
cided, the  law  might  compel  the  contribution  on  the 
grounds  that  we  have  stated,  it  may  try  to  bring  about 
the  same  result  by  the  creation  of  motives  less  compul- 
sory than  command  and  of  disadvantages  in  holding 
aloof  less  peremptory  than  an  immediate  stop.  We 
shall  not  go  through  the  details  of  minute  criticism 
urged  by  the  appellants,  in  most  if  not  all  of  which  they 
are  in  no  way  concerned. 

"Perhaps  the  most  striking  of  these  subordinate  mat- 
ters is  the  preference  of  ordinary  depositors  over  other 
creditors, — a  preference  that  seems  to  be  overstated  by 
the  appellants. 

"This,  obviously,  is  in  aid  of  what  we  have  assumed 

and  the  Law  of  Workmen's  Compensation,  p.  137,  citing  McElrath 
v.  United  States,  102  U.  S.  426,  26  L.  ed.  189;  Guthrie  Nat.  Bank  v. 
Guthrie,  173  U.  S.  534,  43  L.  ed.  798,  19  Sup.  Ct.  513. 

51  Noble  State  Bank  v.  Haskell,  219  U.  S.  104,  31  S.  Ct  186,  299 ; 
Shallenberger  v.  First  State  Bank,  219  U.  S.  114,  31  S.  Ot.  189; 
Assaria  State  Bank  v.  Dolley,  219  U.  S.  121,  31  S.  Ct.  189. 


§  99       WORKMEN'S  COMPENSATION  AND  INSURANCE.     204 

to  be  the  one  of  the  chief  objects  and  justifications  of 
such  laws,  securing  the  currency  of  checks.  The  ordi- 
nary deposits  are  those  that  are  drawn  against  in  that 
way."52 

62  Assaria  State  Bank  v.  Dolley,  219  U.  S.  121,  31  S.  Ct.  189. 


CHAPTER  IX. 

SUMMARY  OF  FOREIGN  COMPENSATION  LAWS. 

Sec.  Sec. 

100.  Outline    of    foreign    work-      113.  Luxenburg  schedule. 

men's  compensation  laws.  114.  Netherlands  schedule. 

101.  Austrian  schedule.  115.  New  Zealand  schedule. 

102.  Belgian  schedule.  116.  Norwegian      schedule       of 

103.  British  Columbia  schedule.  compensation  and  scope  of 

104.  Cape  of  Good  Hope  sched-  act. 

ule.  117.  Queensland      schedule      of 

105.  Denmark  schedule.  compensation    and    scope 

106.  Finland  schedule.  of  act. 

107.  French  schedule.  118.  Russian  schedule. 

108.  German    schedule   of  com-      119.  South  Australian  schedule. 

pensation  and  scope  of  act.      120.  Swedish  schedule. 

109.  Great  Britain  schedule.  121.  Spanish  schedule. 

110.  Greek  schedule  of  compen-      122.  West  Australia  schedule  of 

sation  and  scope  of  act.  compensation  and  scope  of 

111.  Hungarian  schedule.  act. 

112.  Italian  schedule. 

§  100.     Outline  of  foreign  workmen's  compensation 

laws.1 — By  the  term  "workmen's  compensation  laws"  are 
meant  enactments  which  embody  the  principle  that  the 
workman  is  entitled  to  compensation  for  injuries  re- 
ceived in  the  course  of  his  employment.  Such  laws 
have  been  enacted  in  twenty-two  foreign  States. 

Usually  the  injuries  must  cause  disablement  for  a 
specified  number  of  days  or  weeks  before  compensation 
becomes  due.  The  employer  may  usually  be  relieved 
from  the  payment  of  compensation  if  he  can  prove  that 
the  injury  was  caused  intentionally  or  by  wilful  miscon- 
duct, or  in  some  countries  by  the  gross  negligence  of  the 
injured  person  or  during  the  performance  of  an  illegal 
act. 

The  industries  usually  covered  by  the  acts  are  manu- 
facturing, mining  and  quarrying,  transportation,  build- 

i  The  sources  of  this  chapter  are  found  in  the  24th  annual  report 
of  the  Department  of  Commerce  and  Labor. — [AUTHOR.] 

205 


§  ioo    WORKMEN'S  COMPENSATION  AND  INSURANCE.     206 

ing  and  engineering  work,  and  other  employments  in- 
volving more  or  less  hazard.  In  Belgium,  France,  and 
Great  Britain  the  laws  apply  to  practically  all  employ- 
ments. In  Austria,  Belgium,  Denmark,  Finland,  Ger- 
many, Italy,  Luxemburg,  Netherlands,  Norway,  Russia, 
Spain,  and  Sweden,  only  workmen  engaged  in  actual 
manual  work,  and  in  some  cases  those  exposed  to  the 
same  risks,  such  as  overseers  and  technical  experts, 
come  within  the  operations  of  the  law.  On  the  other 
hand,  in  France,  Great  Britain,  the  British  colonies,  and 
Hungary,  the  laws  apply  to  salaried  employes  and  work- 
men equally.  Overseers  and  technical  experts  earning 
more  than  a  prescribed  amount  are  excluded  in  Belgium, 
Denmark,  Germany,  Great  Britain,  Italy,  Luxemburg, 
and  Russia.  Employes  of  the  state,  provincial,  and  local 
administrations  usually  come  within  the  provisions  of 
the  acts. 

The  entire  burden  rests  upon  the  employer  in  all  but 
five  countries,  Austria,  Germany,  Great  Britain  (since 
the  enactment  of  the  David  Lloyd  George  Insurance 
Laws  against  sickness,  invalidity  and  old  age  and  out  of 
work),  Hungary,  and  Luxemburg,  where  the  employes 
bear  part  of  the  expense.  The  laws  in  every  case  fix  the 
compensation  to  be  paid.  Except  in  Sweden  the  com- 
pensation is  based  upon  the  wages  of  the  injured  person. 
It  consists  of  medical  and  surgical  treatment  and  period- 
ical allowances  for  temporary  disability,  and  annual  pen- 
sions or  lump-sum  payments  for  permanent  disability  or 
death. 

In  most  countries  employers  may  contract  with  state 
or  private  insurance  institutions  for  meeting  the  pay- 
ments. In  a  number  of  countries  such  transfer  is  obliga- 
tory. Provision  is  usually  made  for  the  protection*  of 
beneficiaries  in  case  of  insolvency  of  employers. 

The  acts  of  nearly  all  of  the  countries  are  framed 
with  the  view  of  obviating  the  necessity  for  instituting 
legal  proceedings.  If  disputes  arise,  the  acts  specify  the 


2O7  SUMMARY  OF   FOREIGN   LAWS.  §  IOI 

necessary  procedure  for  settlement  by  special  arbitration 
tribunals  or  by  ordinary  law  courts. 

The  following  summary  gives  the  most  important 
features  of  the  workmen's  compensation  acts  of  all 
countries : 

§  101.  Austrian  schedule. — Date  of  enactment. — 
December  28,  1887,  in  effect  November  1,  1889,  Amen- 
datory acts,  March  30,  1888,  April  4  and  July  28,  1889, 
January  17,  1890,  December  30,  1891,  September  17, 
1892,  July  20,  1894,  and  July  12,  1902. 

Injuries  compensated. — All  injuries  causing  death  or 
disability  for  more  than  three  days  received  in  the  course 
of  employment,  unless  caused  intentionally. 

Industries  covered. — Mining,  quarrying,  stonecut- 
ting,  manufacturing,  building  trades,  railways,  trans- 
portation on  inland  waters,  storage,  theaters,  chimney 
sweeping,  street  cleaning,  building  cleaning,  sewer 
cleaning,  dredging,  well  digging,  structural  iron  work- 
ing, etc. ;  agricultural  and  forestry  establishments  using 
machinery. 

Persons  compensated. — All  workmen  and  technical 
officials  regularly  employed,  but  in  agriculture  and  for- 
estry only  employes  exposed  to  machinery. 

Government  employes. — Act  applies  to  government 
employes  unless  an  equal  or  more  favorable  compensa- 
tion is  provided  by  other  laws. 

Burden  of  payment. — Medical  and  surgical  treat- 
ment for  twenty  weeks  and  compensation  for  four  weeks 
of  disability  paid  by  sick  funds,  to  which  employers  con- 
tribute one-third  and  employes  two-thirds.  Compensa- 
tion for  disability  after  fourth  week,  and  for  death,  paid 
by  territorial  insurance  associations,  to  which  employes 
contribute  10  per  cent  and  employers  90  per  cent. 

Compensation  for  death: 

(a)  Funeral  expenses  not  to  exceed  25   florins 
($10.15). 


§  ioi      WORKMEN'S  COMPENSATION  AND  INSURANCE.      208 

(b)  Pensions  to  members  of  family,  not  to  ex- 
ceed 50  per  cent  of  earnings  of  deceased, 


[Widow,  20  per  cent  until  death  or  remar- 
riage; in  the  latter  case  a  lump  sum  equal 
to  three  annual  payments;  to  dependent 
widower,  20  per  cent  during  disability. 

Each  legitimate  child,  15  years  of  age  or 
under,  15  per  cent  when  one  parent  sur- 
vives and  20  per  cent  when  neither  sur- 
vives; to  each  illegitimate  child,  15  years 
of  age  or  under,  10  per  cent;  pensions  of 
widow  (or  widower)  and  children  reduced 
proportionately  if  they  aggregate  over  50 
per  cent. 

(c)  When  pensions  to  above  heirs  do  not  reach 

50  per  cent,  dependent  heirs  in  ascending 
line  receive  pensions,  not  to  exceed  20  per 
cent  of  earnings  of  deceased,  parents  tak- 
ing precedence  over  grandparents. 

(d)  In  computing  pensions,  the  excess  of  the  an- 

nual earnings  over  1,200  florins  ($487.20) 
is  not  considered. 

Compensation  for  disability: 

(a)  Medical  and  surgical  attendance  for  twenty 

weeks,  paid  by  sick  benefit  fund. 

(b)  For  total  temporary  or  permanent  disability, 

60  per  cent  of  average  daily  wages  of  in- 
sured workmen  in  the  locality,  paid  by 
sick  benefit  funds,  from  first  to  twenty- 
eighth  day;  and  60  per  cent  of  average  an- 
nual earnings  of  injured  person,  after 
twenty-eighth  day,  paid  by  territorial  ac- 
cident insurance  institutions. 

(c)  For  partial  temporary  or  permanent  disabil- 

ity, benefits  consist  of  a  portion  of  above 


2O9  SUMMARY  OF  FOREIGN  LAWS.  §  IO2 

allowance,  but  may  not  exceed  50  per  cent 
of  average  annual  earnings. 

'(d)  In  computing  payments  the  excess  of  annual 
earnings  over  1,200  florins  ($487.20)  is  not 
considered. 

Revision  of  compensation. — Reconsideration  of  the 
case  may  be  undertaken  by  the  insurance  association  of 
its  own  will,  or  upon  petition. 

Insurance. — Payments  are  met  by  mutual  insurance 
associations  of  employers,  in  which  all  employes  are  re- 
quired to  be  insured.  The  country  is  divided  into  dis- 
tricts, with  a  separate  association  for  each  district. 

Security  of  payments. — Operations  of  the  insurance 
associations  are  conducted  under  the  supervision  of  the 
minister  of  interior,  who  may  increase  the  assessments. 
Settlement  of  disputes. — Disputes  are  settled  by 
arbitration  courts  composed  of  a  judicial  officer  ap- 
pointed by  the  minister  of  justice,  two  experts  appointed 
by  the  minister  of  the  interior,  and  one  representative 
each  of  the  employers  and  employes. 

§  102.  Belgian  schedule. — Date  of  enactment. — De- 
cember 24,  1903,  in  effect  July  1,  1905. 

Injuries  compensated. — All  injuries  by  accident  to 
employes  in  the  course  of  and  by  reason  of  the  execution 
of  the  labor  contract,  causing  death  or  disability  for  over 
one  week,  unless  intentionally  brought  on  by  the  person 
injured. 

Industries  covered. — Practically  all  establishments  in 
mining,  quarrying,  forestry  work,  manufacturing,  build- 
ing and  engineering  work,  transportation,  and  telephone 
and  telegraph  services;  establishments  using  mechanical 
motive  power;  industrial  establishments  employing  five 
or  more  persons ;  agricultural  and  commercial  establish- 
ments employing  three  or  more  persons;  industries 
designated  by  royal  decree  as  dangerous.  Other  in- 
dustries at  option  of  employer. 

14— BOTD  W  C 


§  IO2      WORKMEN'S  COMPENSATION  AND  INSURANCE.      210 

Persons  compensated. — Workmen  and  apprentices, 
and  salaried  employes  exposed  to  the  same  risks  as 
workmen  whose  annual  salaries  do  not  exceed  2,400 
francs  ($463.20). 

Government  employes. — Act  covers  employes  of  any 
public  establishment  engaged  in  industries  enumerated 
above. 

Burden  of  payment. — Entire  cost  of  compensation 
rests  upon  employer. 

Compensation  for  death: 

(a)  Funeral  benefit  of  75  francs  ($14.48). 

(b)  A  sum  representing  value  of  an  annuity  of 

30  per  cent  of  annual  earnings  of  deceased, 
calculated  upon  basis  of  his  age  at  death, 
to  be  distributed  to — 

Dependent  widow  or  widower,  whole  amount 
if  no  other  heirs,  four-fifths  if  one  child 
under  16  years  of  age  or  one  or  more  de- 
pendent heirs,  three-fifths  if  two  or  more 
children. 

Children  under  16  years  of  age,  the  residue. 

Dependent  heirs  in  ascending  line  and 
descending  line  under  16  years  of  age,  in 
absence  of  widow  or  widower  or  children 
under  16  years  of  age. 

Dependent  brothers  and  sisters  under  16 
years  of  age  in  absence  of  heirs  above 
enumerated. 

(c)  Allowances  in  case  of  annual  wages  of  2,400 

francs  ($463.20)  or  more,  or  of  365  francs 
($70.45)  or  less,  are  based  upon  these 
amounts,  respectively. 

(d)  Payments  to  widow  and  heirs  in  ascending 

line  are  converted  into  life  pensions,  those 
to  other  heirs  into  pensions  expiring  at  age 
of  16  years.  Heirs  may  require  one-third 


211  SUMMARY  OF  FOREIGN  LAWS.  §  IO2 

of  capital  value  of  life  pensions  to  be  paid 
in  cash  and  pension  reduced  accordingly. 
Compensation  for  disability: 

(a)  Expense  of  medical  and  surgical  treatment 

for  not  over  six  months. 

(b)  If  totally  disabled,  an  allowance  of  50  per 

cent  of  daily  wages,  beginning  with  day 
after  accident. 

(c)  If  partially  disabled,  an  allowance  of  50  per 

cent  of  loss  of  earning  power,  beginning 
with  day  after  accident. 

'(d)  If,  after  three  years,  disability  is  permanent, 
temporary  allowance  is  replaced  by  life  an- 
nuity. Victim  may  require  one-third  of 
capital  value  of  pension  to  be  paid  in  cash 
and  pension  reduced  accordingly. 
(e)  Allowances  in  case  of  annual  wages  of  2,400 
francs  ($463.20)  or  more,  or  of  365  francs 
($70.45)  or  less,  are  based  upon  these 
amounts,  respectively. 

Revision  of  compensation. — Revision  of  compensa- 
tion because  of  aggravation  or  diminution  of  disability, 
or  death  of  victim,  may  be  made  within  three  years. 

Insurance. — Employers  may  transfer  burden  of  pay- 
ment of  compensation  to  establishment  funds  or  ap- 
proved insurance  companies  or  to  general  savings  and 
retirement  fund.  They  may  also  transfer  burden  of 
payment  of  temporary  allowances  to  mutual  aid  soci- 
eties. 

Security  of  payments. — Employers  who  have  not  re- 
lieved themselves  of  liability  by  insurance  must  make 
deposits  of  cash  or  securities  or  give  real  estate  mort- 
gages to  secure  pension  payments.  To  secure  tempor- 
ary disability  payments  of  uninsured  employers  a  State 
guaranty  fund  is  maintained  by  a  tax  levied  upon  such 
employers. 

Settlement   of   disputes. — The   local   justice   of   the 


§  IO3     WORKMEN'S  COMPENSATION  AND  INSURANCE.     212 

peace  has  sole  jurisdiction  as  a  court  of  first  resort  over 
disputes  arising  under  the  act,  and  his  judgment  is  final 
in  all  cases  involving  300  francs  ($57.90)  or  less. 

§  103.  British  Columbia  schedule. — Date  of  enact- 
ment.—June  21,  1902,  in  effect  May  1,  1903. 

Injuries  compensated. — Injuries  by  accident  arising 
out  of  and  in  the  course  of  the  employment  which  cause 
death  or  disable  a  workman  for  at  least  two  weeks  from 
earning  full  wages  at  the  work  at  which  he  was  em- 
ployed, unless  the  injury  is  "attributable  solely  to  the 
serious  and  wilful  misconduct  or  serious  neglect"  of  the 
injured  workman. 

Industries  covered. — Railways,  factories,  mines, 
quarries,  engineering  work,  and  buildings  which  exceed 
40  feet  in  height  and  are  being  constructed  or  repaired 
by  means  of  a  scaffolding  or  being  demolished,  or  on 
which  machinery  driven  by  mechanical  power  is  used  for 
construction,  repair,  or  demolition. 

Persons  compensated. — All  persons  engaged  in  man- 
ual labor  or  otherwise. 

Government  employes. — Act  applies  to  civilian  em- 
ployes in  the  service  of  the  Crown,  to  whom  it  would 
apply  if  the  employer  were  a  private  person. 

Burden  of  payment. — Entire  cost  of  compensation 
rests  upon  employer. 

Compensation  for  death: 

(a)  A  sum  equal  to  three  years'  earnings,  but  not 

less  than  $1,000  nor  more  than  $1,500,  to 
those  wholly  dependent  on  earnings  of  de- 
ceased. 

(b)  A  sum  less  than  above  amount  if  workman 

leaves  persons  partially  dependent  on  his 
earnings,  the  amount  to  be  agreed  upon 
by  the  parties  or  to  be  fixed  by  arbitration. 

(c)  Reasonable  expenses  of  medical  attendance 

and  burial,  not  exceeding  $100,  if  deceased 
leaves  no  dependents. 


213  SUMMARY  OF  FOREIGN  LAWS.  §  103 

Compensation  for  disability: 

(a)  A   weekly   payment   during   disability   after 

second  week,  not  exceeding  50  per  cent  of 
employe's  average  weekly  earnings  during 
the  previous  twelve  months,  such  weekly 
payments  not  to  exceed  $10,  and  total  lia- 
bility not  to  exceed  $1,500. 

(b)  A  weekly  payment  during  partial  disability 

after  second  week  to  be  fixed  with  regard 
to  the  difference  between  employe's  aver- 
age weekly  earnings  before  the  accident 
and  average  weekly  amount  which  he  is 
earning  or  able  to  earn  after  the  injury. 
'(c)  A  lump  sum  may  be  substituted  for  the 
weekly  payments,  after  six  months,  on  the 
application  of  the  employer,  the  amount  to 
be  settled,  in  default  of  agreement,  by  arbi- 
tration under  the  act. 

Revision  of  compensation. — Weekly  payments  may 
be  revised  at  request  of  either  party. 

Insurance. — Employers  may  contract  with  their  em- 
ployes for  the  substitution  of  a  scheme  of  compensation, 
benefit,  or  insurance  in  place  of  the  provisions  of  the 
act  if  the  attorney-general  certifies  that  the  scheme  is 
on  the  whole  not  less  favorable  to  the  general  body  of 
employes  and  their  dependents  than  the  provisions  of 
the  act.  In  such  case  the  employer  is  liable  only  in  ac- 
cordance with  this  scheme. 

Security  of  payments. — When  an  employer  becomes 
liable  under  the  act  to  pay  compensation  and  is  entitled 
to  any  sum  from  insurers  on  account  of  the  amount  due 
to  a  workman  under  such  liability,  then  in  the  event  of 
the  employer  becoming  bankrupt,  such  workman  has  a 
first  claim  upon  the  amount  so  due,  and  a  judge  of  the 
supreme  court  may  direct  the  insurers  to  pay  such  sum 
into  any  chartered  bank  of  Canada  to  be  invested  or 
applied  to  payment  of  compensation. 


§  IO4     WORKMEN'S  COMPENSATION  AND  INSURANCE.     214 

Settlement  of  disputes. — Disputes  arising  under  the 
act  are  settled  by  arbitration  of  existing  committees 
representative  of  employers  and  employes,  or  if  either 
party  objects,  by  a  single  arbitrator  agreed  upon  by  the 
parties,  or,  in  the  absence  of  agreement,  by  an  arbitrator 
appointed  by  a  judge  of  the  supreme  court.  An  arbi- 
trator appointed  by  a  judge  of  the  supreme  court  has  all 
the  power  of  a  judge  of  the  supreme  court.  Questions 
of  law  may  be  submitted  by  the  arbitrator  for  the  deci- 
sion of  a  judge  of  the  supreme  court. 

§  104.  Cape  of  Good  Hope  schedule. — Date  of  en- 
actment.— June  6,  1905,  in  effect  September  1,  1905. 

Injuries  compensated. — All  injuries  to  employes 
arising  out  of  and  in  the  course  of  the  employment  caus- 
ing death  or  necessitating  absence  from  work  for  more 
than  three  days  and  not  being  caused  by  or  through  the 
gross  carelessness  of  the  injured  employe. 

Industries  covered. — Any  trade,  business,  or  public 
undertaking,  on  land  or  upon  or  within  the  territorial 
waters  of  the  colony,  except  domestic,  messenger,  or 
errand  service  or  employment  in  agriculture. 

Persons  compensated. — Employes,  whether  engaged 
in  manual  work  or  otherwise. 

Government  employes. — Act  applies  to  civilian  per- 
sons employed  by  or  under  the  Crown  to  whom  it  would 
apply  if  employer  were  a  private  person. 

Burden  of  payment. — Employer  and  every  principal 
are  jointly  and  severally  liable  for  the  compensations  re- 
quired under  the  act. 

Compensation  for  death. — When  death  results  from 
an  injury  for  which  a  lump  sum  has  not  already  been 
paid  on  account  of  permanent  disability — 

(a)  A  lump  sum  not  exceeding  three  years' 
wages  of  deceased,  nor  more  than  £400 
($1,946.60),  to  those  wholly  dependent 
upon  the  workman's  earnings. 


215  SUMMARY  OF  FOREIGN  LAWS.  §  IO4 

(b)  A  lump  sum  not  exceeding  £200  ($973.30), 

to  those  partially  dependent  upon  the 
workman's  earnings ;  in  the  absence  of  per- 
sons totally  dependent,  the  sum  not  to  ex- 
ceed the  value  of  the  support  which  they 
were  receiving  from  the  deceased,  calcu- 
lated for  two  years. 

(c)  Temporary  payments   previously  made  not 

to  be  deducted  from  above  sums  unless 
they  have  continued  longer  than  three 
months. 

(d)  Reasonable  expenses  of  medical  attendance 

and  burial  not  exceeding   £40  ($194.66) 
in  case  deceased  leaves  no  dependents. 
Compensation  for  disability: 

(a)  A  sum  not  exceeding  three  years'  wages,  less 

any  payments  received  under  a  provisional 
order  of  court,  but  not  exceeding  £600 
($2,919.90)  in  case  of  permanent  total  dis- 
ability, and  a  smaller  sum  in  proportion  to 
loss  of  earning  power  and  not  exceeding 
£300  ($1,459.95)  in  case  of  permanent 
partial  disability. 

(b)  A  payment  made,  by  order  of  the  local  magi- 

strate, at  the  same  intervals  as  the  custom- 
ary wage  payments,  not  exceeding  50  per 
cent  of  wages  received  at  time  of  the  in- 
jury, nor  £2  ($9.73)  per  week  if  the  in- 
jury causes  temporary  disability  lasting 
more  than  three  days. 

Revision  of  compensation. — The  provisional  order 
may  be  set  aside  or  altered  by  the  magistrate,  upon  re- 
quest of  either  party,  if  justified  by  a  further  examina- 
tion of  the  injured  person  or  by  production  of  additional 
evidence. 

Insurance. — Employers  may  insure  in  a  company  or 
association  against  personal  injury  to  the  workmen  em- 


§  IO5     WORKMEN'S  COMPENSATION  AND  INSURANCE.     216 

ployed  by  them  or  in  their  behalf.  If  the  employer  con- 
tributes toward  a  benefit  society  of  which  the  injured 
or  deceased  person  is  a  member,  allowance  is  made  for 
such  contribution  by  the  court  in  its  order  or  judgment 
fixing  amount  of  compensation  to  be  paid. 

Security  of  payments. — When  an  employer  or  prin- 
cipal is  adjudged  or  admits  liability  under  the  act  and 
is  entitled  to  any  sum  from  any  insurers  on  account  of 
such  liability,  then,  in  the  event  the  employer  becomes 
insolvent,  the  worker  or  his  dependents  have  a  first 
claim  upon  such  sum. 

Settlement  of  disputes. — Compensation  in  cases  of 
disability  is  fixed  provisionally  for  not  more  than  six 
months  by  the  local  magistrate  after  receiving  a  phy- 
sician's certificate  of  disability  and  holding  an  inquiry. 
No  appeal  can  be  taken  from  this  preliminary  order  ex- 
cept against  a  finding  on  the  question  of  gross  careless- 
ness and  then  only  upon  leave  granted  by  the  superior 
court.  In  case  the  injury  results  in  death  or  permanent 
disability,  the  claimants  have  a  right  of  action  in  the 
local  magistrate's  court  for  the  amounts  due  under  the 
law.  In  fixing  the  amount,  the  court  is  required  in 
every  case  to  have  regard  to  the  workman's  or  the  de- 
pendent's necessities. 

§  105.  Denmark  schedule. — Date  of  enactment. — 
January  7,  1898,  in  effect  January  15,  1899;  amended 
May  15,  1903. 

Injuries  compensated. — All  injuries  by  accident  oc- 
casioned by  the  trade  or  its  conditions,  and  causing 
either  death  or  disability  lasting  over  thirteen  weeks, 
unless  brought  on  intentionally  or  through  gross  negli- 
gence of  the  victim. 

Industries  covered. — Practically  all  establishments  in 
mining,  quarrying,  manufactures,  building  and  engi- 
neering work,  transportation,  telephone  and  telegraph 
services,  diving  and  salvage;  establishments  using 


217  SUMMARY  OF  FOREIGN  LAWS.  §  105 

mechanical  power  which  makes  them  subject  to  factory 
inspection;  other  industrial  establishments  designated 
by  the  minister  of  interior. 

Persons  compensated. — All  workmen  in  mechanical 
and  technical  departments,  including  those  in  supervis- 
ory capacity  whose  annual  earnings  do  not  exceed  2,400 
crowns  ($643.20). 

Government  employes. — Act  applies  to  all  employes 
of  state  and  the  communal  governments  in  industries 
above  indicated. 

Burden  of  payment. — Entire  burden  of  payment  rests 
upon  employer. 

Compensation  for  death: 

(a)  Funeral  benefit  of  50  crowns  ($13.40). 

(b)  A  lump  sum  equal  to  four  times  annual  earn- 

ings of  deceased,  but  not  over  3,200  crowns 

($857.60)    nor    less    than    1,200    crowns 

($321.60),  to— 

Widow,  whole  amount,  if  she  survives. 
Child,  whole  amount,  if  it  be  the  only  heir. 
Children,  according  to  decision  of  insurance 

council,  when  there  is  no  widow. 
If    neither    widow    nor    children,    insurance 

council  decides  whether  and  how  far  other 

heirs  receive  compensation. 
Compensation  for  disability: 

(a)  From  end  of  thirteenth  week  after  accident 

until  end  of  treatment,  or  until  disability 
is  declared  permanent,  a  daily  compensa- 
tion of  60  per  cent  of  earnings,  but  not 
less  than  1  crown  (27  cents)  nor  over  2 
crowns  (54  cents)  for  total  disability,  and 
a  proportionate  compensation  for  partial 
disability. 

(b)  In  case  of  permanent  disability  an  indem- 

nity of  six  times  annual  earnings,  but  not 
less  than  1,800  crowns  ($482.40)  nor  over 


§  io6     WORKMEN'S  COMPENSATION  AND  INSURANCE.     218 

4,800  crowns  ($1,286.40)  for  total  perma- 
nent disability,  and  proportionate  pay- 
ments for  partial  permanent  disability, 
(c)  If  employe  suffering  from  permanent  dis- 
ability is  a  male  between  30  and  55  years 
of  age,  he  may  demand  purchase  of  an 
annuity.  For  men  of  other  ages,  or  of 
unsound  mind,  or  women  and  children, 
the  insurance  council  may  substitute  an 
annuity. 

Revision  of  compensation. — Determination  of  de- 
gree of  permanent  disability  must  be  made  as  soon  as 
possible  after  one  year  from  date  of  injury.  If  this  be 
not  possible,  a  temporary  determination  may  be  made, 
but  a  redetermination  may  be  demanded  within  two 
years  following. 

Insurance. — Employers  may  transfer  obligation  im- 
posed by  the  law,  by  insuring  their  employes  in  author- 
ized insurance  companies  or  mutual  employers'  insur- 
ance associations. 

Security  of  payments. — Where  liability  under  the 
law  has  not  been  transferred  by  insurance  indemnity 
for  disability  is  a  preferred  claim  upon  assets  of  em- 
ployer. 

Settlement  of  disputes. — Disputes  concerning  com- 
pensation, unless  settled  by  mutual  consent,  must  be 
referred  to  insurance  council.  Appeals  may  be  had  to 
the  minister  of  interior. 

§  106.     Finland  schedule. 

Date  of  enactment. — December  5,  1895,  in  effect 
January  1,  1898. 

Injuries  compensated. — All  injuries  by  accident  dur- 
ing work,  causing  death  or  disability  for  more  than  six 
days,  except  when  brought  on  intentionally  or  through 
gross  negligence  of  victim,  intentionally  by  any  other 
person  than  the  one  charged  with  supervision  of  the 


219  SUMMARY  OF  FOREIGN  LAWS.  §'IO6 

work,  or  caused  by  some  other  occurrence  utterly  in- 
dependent of  the  nature  of  conditions  of  work. 

Industries  covered. — Mines,  quarries,  metallurgical 
establishments,  factories,  sawmills,  industrial  establish- 
ments using  mechanical  power,  construction  of  churches 
and  buildings  over  one  story  high;  construction  and 
operation  of  water,  gas,  electric  power  plants,  and  oper- 
ation of  railroads. 

Persons  compensated. — All  persons  actually  em- 
ployed at  work,  but  not  those  supervising  only. 

Government  employes. — Act  applies  to  employment 
on  the  state  and  communal  construction  works  and  state 
railways. 

Burden  of  payment. — Entire  burden  of  payment 
rests  upon  employer. 

Compensation  for  death. — In  addition  to  any  prior 
payments  on  account  of  disability,  pensions  to  depend- 
ent heirs,  from  day  of  death,  not  exceeding  40  per  cent 
of  annual  earnings  of  deceased,  to — 

(a)  Widow,  20  per  cent  until  death  or  remar- 

riage; in  latter  case  a  final  sum  equal  to 
two  annual  payments. 

(b)  Each  child  until  the  age  of  15  years,  10  per 

cent   if  one  parent   survives,   and  20  per 
cent  if  neither  parent  survives. 

(c)  In  computing  pensions,  earnings  of  work- 

man to  be  considered  not  over  720  marks 
($138.96)  nor  under  300  marks  ($57.90) ; 
but  no  adult  employe  to  receive  a  pension 
greater  than  his  actual  earnings. 
Compensation  for  disability: 

(a)  A  pension  equal  to  60  per  cent  of  employe's 
earnings  for  total  disability,  or  a  pension 
proportionate  to  the  degree  of  incapacity 
for  partial  disability,  to  be  paid  from  day 
of  recovery  from  illness  due  to  injury,  or 
after  120  days  have  elapsed  since  injury. 


§  io6    WORKMEN'S  COMPENSATION  AND  INSURANCE.     220 

(b)  Pension  may  by  mutual  consent    be    re- 

placed by  single  payment,  if  it  does  not 
exceed  20  marks  ($3.86)  annually. 

(c)  In  computing  pension,  earnings   of  work- 

man to  be  considered  not  over  720  marks 
($138.96)  nor  under  300  marks  ($57.90) ; 
but  no  adult  employe  to  receive  a  pension 
greater  than  his  actual  earnings. 

(d)  In  cases  of  temporary  disability  (including 

all  cases  of  disability  for  120  days  after  in- 
jury) daily  compensation  of  60  per  cent  of 
earnings,  beginning  with  seventh  day  af- 
ter accident,  for  complete  temporary  dis- 
ability, and  a  proportionate  compensation 
for  partial  disability;  but  not  more  than 
2.50  marks  (48  cents)  per  diem. 
r(e)  Until  recovery,  injured  employe  may  be 
given  treatment  in  a  hospital  in  lieu  of 
other  compensation;  during  such  treat- 
ment his  wife  and  children  get  a  compen- 
/  sation  equal  to  pension  in  case  of  death. 

Revision  of  compensation. — Demands  for  revision 
of  compensation  may  be  made  by  either  party  before 
proper  court. 

Insurance. — Employers  are  required  to  transfer  the 
burden  of  payment  of  compensation  to  a  governmental 
insurance  office,  private  insurance  company,  mutual  em- 
ployers' insurance  association,  or  approved  foreign  in- 
surance company,  unless  unable  to  obtain  such  insur- 
,  ance  or  released  from  this  obligation  on  presentation  of 
satisfactory  guarantees. 

Security  of  payments. — When  exempted  from  the 
duty  of  insuring  his  employes,  or  unable  to  obtain  in- 
surance, the  employer  must  guarantee  payment  of  pen- 
sion to  the  injured  workman  or  his  family  by  arrange- 
ment with  a  private  insurance  company. 


221  SUMMARY  OF  FOREIGN  LAWS.  §  lO/ 

Settlement  of  disputes. — In  case  of  absence  of  insur- 
ance or  dissatisfaction  with  decision  of  insurance  com- 
pany, injured  employe  or  his  dependent  may  carry  the 
case  into  the  inferior  court  of  the  locality. 

§  107.     French  schedule. 

Date  of  enactment. — April  9,  1898,  in  effect  July  1, 
1899;  amendatory  and  supplementary  acts  March  22, 
1902;  March  31,  1905;  April  12,  1906,  and  July  17,  1907. 

Injuries  compensated. — All  injuries  by  accident  to 
workmen  or  salaried  employes  during  or  on  account  of 
labor  causing  death  or  disability  for  five  or  more  days, 
unless  produced  intentionally  by  the  victim.  If  due  to 
inexcusable  fault  of  victim  or  of  employer,  compensa- 
tion may  by  a  court  order  be  decreased  or  increased,  but 
not  exceeding  actual  earnings  of  victim. 

Industries  covered. — Building  trades,  factories, 
workshops,  shipyards,  transportation  by  land  and  water, 
public  warehouses,  mining  and  quarrying,  manufacture 
or  handling  of  explosives,  agricultural  and  other  work 
using  mechanical  power,  and  mercantile  establishments ; 
other  industries  on  request  of  both  parties. 

Persons  compensated. — All  workmen  and  salaried 
employes. 

Government  employes. — Law  applies  to  state,  de- 
partmental, and  communal  establishments  when  en- 
gaged in  industries  enumerated  above. 

Burden  of  payment. — Entire  cost  of  compensation 
falls  upon  employer. 

Compensation  for  death: 

(a)  Funeral  expenses  not  exceeding  100  francs 

($19.30). 

(b)  Pensions  to  dependent  heirs  not  exceeding 

60  per  cent  of  annual  wages  of  deceased, 
distributed  to — 
Widow  or  widower,  20  per  cent  until  death 


§  107     WORKMEN'S  COMPENSATION  AND  INSURANCE.     222 

or  remarriage,  in  which  latter  case  a  final 
sum  equal  to  three  annual  payments. 

Children  under  16  years  of  age,  if  one  parent 
survives — 15  per  cent  if  there  is  but  one 
child ;  25  per  cent  if  there  are  two  children ; 
35  per  cent  if  there  are  three  children;  40 
per  cent  if  there  are  four  or  more  children. 

Each  child  under  16  years  of  age  if  neither 
parent  survives,  20  per  cent. 

Each  ascendant  and  each  descendant  under 
16  years  of  age  dependent  upon  deceased, 
if  no  widow  or  children  survive,  10  per 
cent,  the  aggregate  not  to  exceed  30  per 
cent. 

(c)     If     annual     wages     exceed     2,400     francs 
(463.20),  only  one-fourth  of  the  excess  is 
considered  in  computing  pensions. 
Compensation  for  disability: 

(a)  Expenses  of  medical  or  surgical  treatment. 

(b)  If  permanently  disabled,  a  pension  of  66  2-3 

per  cent  of  annual  wages  for  total  disabil- 
ity and  of  one-half  loss  of  earning  capacity 
for  partial  disability;  or,  if  demanded,  one- 
fourth  capital  value  of  pension  in  cash,  the 
pension  to  be  reduced  accordingly. 

(c)  If  temporarily  disabled,  an  allowance  of  50 

per  cent  of  daily  wages,  beginning  with 
fifth  day,  and  including  Sundays  and  holi- 
days, unless  disability  lasts  more  than  ten 
days,  when  payments  become  due  from 
the  first  day. 

(d)  If     annual     wages     exceed     2,400     francs 

($463.20),  only  one-fourth  of  the  excess  is 
considered  in  computing  pensions. 

(e)  Payments     of    pensions    of   not   over    100 

francs   ($19.30)   per  annum  may,  by  mu- 


223  SUMMARY  OF  FOREIGN  LAWS.  §  IO8 

tual  consent  when  beneficiary  is  of  age,  be 
replaced  by  a  cash  payment. 

Revision  of  compensation. — Revision  of  compensa- 
tion because  of  aggravation  or  diminution  of  disability 
of  victim  may  be  made  within  three  years. 

Insurance. — Employers  may  transfer  burden  of 
payment  of  compensation  to  approved  mutual  aid,  acci- 
dent insurance,  or  guaranty  association,  or,  in  ease  of 
pensions,  to  national  accident  insurance  or  national  old- 
age  pension  funds. 

Security  of  payments. — The  state  guarantees  against 
loss  of  pension  payments  on  account  of  insolvency  of 
employers  or  insurance  organizations,  and  is  reimbursed 
by  a  special  tax  on  employers  within  scope  of  the  act. 
For  temporary  disability  payments,  medicines,  and 
medical  or  surgical  attendance,  and  funeral  expenses  of 
the  victim,  his  creditors  or  representatives  have  a  pre- 
ferred claim  on  property  of  employer. 

Settlement  of  disputes. — Disputes  as  to  pensions  or 
involving  more  than  300  francs  ($57.90)  may  be  carried 
into  higher  civil  courts.  Judgments  of  local  justice  of 
the  peace  is  final  in  other  cases. 

§  108.  German  schedule  of  compensation  and 
scope  of  act. 

Date  of  enactment. — July  6,  1884,  in  effect  October 
1,  1885.  Supplementary  acts  May  28,  1885;  May  5, 
1886;  July  11  and  13,  1887.  A  codification  enacted  June 
30,  1900  and  July  19,  1911. 

Injuries  compensated. — Injuries  by  accident  in  the 
course  of  the  employment,  causing  death  or  disability 
for  more  than  three  days,  unless  caused  intentionally. 
Compensation  may  be  refused  or  reduced  if  injury  was 
received  while  committing  an  illegal  act. 

Industries  covered. — Mining,  salt  works,  quarrying 
and  allied  industries,  ship  yards,  factories,  smelting 
works,  building  trades,  chimney  sweeping,  window 


§  io8     WORKMEN'S  COMPENSATION  AND  INSURANCE.     224 

cleaning,  butchering,  transportation  and  handling,  agri- 
culture, forestry,  and  fisheries. 

Persons  compensated. — All  workmen,  and  those 
technical  officials  whose  annual  earnings  are  less  than 
3,000  marks  ($714).  With  the  approval  of  the  Imperial 
Insurance  Office  the  law  may  be  extended  to  other 
classes. 

Government  employes. — Act  covers  government  em- 
ployes in  postal,  telegraph,  and  railway  services  and  in 
industrial  enterprises  of  army  and  navy,  unless  other- 
wise provided  for. 

Burden  of  payment. — Medical  and  surgical  treat- 
ment for  ninety-one  days  and  benefit  payments  from 
third  to  ninety-first  days  are  provided  by  sick-benefit 
funds,  to  which  employers  contribute  one-third  and  em- 
ployes two-thirds ;  from  twenty-eighth  to  ninety-first  day 
payments  are  increased  by  one-third  at  expense  of  em- 
ployer in  whose  establishment  accident  occurred;  after 
ninety-first  day  and  in  case  of  death  from  injuries  ex- 
pense is  borne  by  employers'  associations  supported  by 
contribution  of  employers. 

Compensation  for  death: 

(a)  Funeral  benefits  of  one-fifteenth  of  annual 

earnings  of  deceased,  but  not  less  than  50 
marks  ($11.90). 

(b)  Pensions  to  dependent  heirs  not  exceeding 

60  per  cent  of  annual  earnings  of  the  de- 
ceased, as  follows:  Widow,  20  per  cent 
of  annual  earnings  until  death  or  remar- 
riage; in  latter  case  a  final  sum  equal  to 
three  annual  payments ;  dependent  widow- 
er, 20  per  cent  of  annual  earnings;  each 
child  15  years  of  age  or  under,  20  per  cent; 
payments  to  consort  and  to  children  to  be 
reduced  proportionately,  if  the  total  would 
exceed  60  per  cent;  dependent  heirs  in 
ascending  line,  20  per  cent  or  less,  if  there 


225  SUMMARY  OF  FOREIGN  LAWS.  §  IO8 

is  a  residue  after  providing  for  above 
heirs;  orphan  grandchildren,  20  per  cent 
or  less,  if  there  is  a  residue  after  providing 
for  above  heirs. 

(c)     If    annual    earnings    exceed    1,500  marks 
($357),  only  one-third  of  excess  is  consid- 
ered in  computing  pensions. 
Compensation  for  disability: 

(a)  Free  medical  and  surgical  treatment  paid 

first  thirteen  weeks  by  sick-benefit  funds, 
and  afterwards  by  employers'  associations. 

(b)  For  temporary  or  permanent  total  disabil- 

ity, 50  per  cent  of  daily  wages  of  persons 
similarly  employed,  but  not  exceeding  3 
marks  (71  cents),  paid  by  sick-benefit 
funds  from  third  day  to  end  of  fourth 
week;  from  fifth  to  end  of  thirteenth  week, 
above  allowance  by  sick-benefit  fund  plus 
16  2-3  per  cent  contributed  by  employer 
direct;  after  thirteen  weeks,  66  2-3  per 
cent  of  average  annual  earnings  of  injured 
person  paid  by  employers'  associations. 

(c)  For  complete  helplessness,  necessitating  at- 

tendance, payments  may  be  increased  to 
100  per  cent  of  annual  earnings. 

(d)  For  partial  disability,  a  corresponding  re- 

duction in  payments. 

(e)  If   annual    earnings    exceed     1,500    marks 

($357),  only  one-third  of  excess  is  con- 
sidered in  computing  pensions. 

Revision  of  payments. — Whenever  a  change  in  con-  ^ 
dition  of  injured  person  occurs  a  revision  of  benefits 
may  be  made. 

Insurance. — Payments  are  met  by  mutual  insurance 
associations  of  employers,  in  which  all  employes  are  re- 
quired to  be  insured  at  the  expense  of  employers.  Sep- 

15— BOYDWC 


§  log    WORKMEN'S  COMPENSATION  AND  INSURANCE.     226 

arate  associations  have  been  organized  for  each  indus- 
try. 

Security  of  payments. — Solvency  of  employers'  as- 
sociations is  guaranteed  by  the  state. 

Settlement  of  disputes. — Disputes  are  settled  by  "ar- 
bitration courts  for  workingmen's  insurance,"  composed 
of  one  government  official,  two  representatives  of  work- 
men, and  two  of  employers. 

§  109.     Great  Britain  schedule. 

Date  of  enactment. — December  21,  1906,  in  effect 
July  1,  1907;  replacing  acts  of  August  6,  1897,  and  July 
30,  1900. 

Injuries  compensated. — Injuries  by  accident  arising 
out  of  and  in  the  course  of  employment  which  cause 
death  or  disability  a  workman  for  at  least  one  week 
from  earning  full  wages  at  the  work  at  which  he  was 
employed.  Compensation  is  not  paid  when  injury  is  due 
to  serious  and  willful  misconduct,  unless  it  results  in 
death  or  serious  and  permanent  disablement. 

Industries  covered. — "Any  employment." 

Persons  compensated. — Any  person  regularly  em- 
ployed for  the  purposes  of  the  employer's  trade  or  busi- 
ness whose  compensation  is  less  than  £250  ($1,216.63) 
per  annum;  but  persons  engaged  in  manual  labor  only 
are  not  subject  to  this  limitation. 

Government  employes. — Act  applies  to  civilian  per- 
sons employed  under  the  Crown  to  whom  it  would  ap- 
ply if  the  employer  were  a  private  person. 

Burden  of  payment. — Entire  cost  of  compensation 
rests  upon  employer. 

Compensation  for  death: 

(a)  A  sum  equal  to  three  years'  earnings,  but 

not  less  than  £150  ($729.98)  nor  more 
than  £300  ($1,459.95),  to  those  entirely 
dependent  on  earnings  of  deceased. 

(b)  A  sum  less  than  above  amount  if  deceased 


227  SUMMARY  OF  FOREIGN  LAWS.  §  IOQ 

leaves  persons  partially  dependent  on  his 
earnings,  amount  to  be  agreed  upon  by 
the  parties  or  fixed  by  arbitration. 

(c)     Reasonable  expenses  of  medical  attendance 
and  burial,  but  not  to  exceed  £10  ($48.67) 
if  deceased  leaves  no  dependents. 
Compensation  for  disability: 

(a)  A  weekly  payment  during  incapacity  of  not 
more  than  30  per  cent  of  employe's  aver- 
age weekly  earnings  during  previous 
twelve  months,  but  not  exceeding  £1 
($4.87)  per  week;  if  incapacity  lasts  less 
than  two  weeks  no  payment  is  required  for 
the  first  week. 

{b)  A  weekly  payment  during  partial  disability, 
not  exceeding  the  difference  between  em- 
ploye's average  weekly  earnings  before 
injury  and  average  amount  which  he  is 
earning  or  is  able  to  earn  after  injury. 

(c)  Minor  persons  may  be  allowed  full  earnings 

during  incapacity,  but  weekly  payments 
may  not  exceed  10  shillings  ($2.43). 

(d)  A  sum  sufficient  to  purchase  a  life  annuity 

through  the  Post-office  Savings  Bank  of 
75  per  cent  of  annual  value  of  weekly  pay- 
ments may  be  substituted,  on  application 
of  the  employer,  for  weekly  payments  after 
six  months;  but  other  arrangements  for 
redemption  of  weekly  payments  may  be 
made  by  agreement  between  employer  and 
employe. 

Revision  of  benefits. — Weekly  payments  may  be  re- 
vised at  request  of  either  party,  under  regulations  is- 
sued by  the  secretary  of  state. 

Insurance. — Employers  may  make  contracts  with 
employes  for  substitution  of  a  scheme  of  compensation, 
benefit,  or  insurance  in  place  of  the  provisions  of  the  act 


§  no     WORKMEN'S  COMPENSATION  AND  INSURANCE.     228 

if  the  registrar  of  friendly  societies  certifies  that  the 
scheme  is  not  less  favorable  to  the  workmen  and  their 
dependents  than  the  provisions  of  the  act,  and  that  a 
majority  of  the  workmen  are  favorable  to  the  substi- 
tute. The  employer  is  then  liable  only  in  accordance 
with  the  provisions  of  the  scheme. 

Security  of  payments. — In  case  of  employer's  bank- 
ruptcy, the  amount  of  compensation  due  under  the  act, 
up  to  £100  ($486.65)  in  any  individual  case,  is  classed 
as  a  preferred  claim ;  or  where  an  employer  has  entered 
into  a  contract  with  insurers  in  respect  of  any  liability 
under  the  act  to  any  workman  such  rights  of  the  em- 
ployer, in  case  he  becomes  bankrupt,  are  transferred  to 
and  vested  in  the  workman. 

Settlement  of  disputes. — Questions  arising  under  the 
law  are  settled  either  by  a  committee  representative  of 
the  employer  and  his  workmen  by  an  arbitrator  selected 
by  the  two  parties,  or,  if  the  parties  can  not  agree,  by 
the  judge  of  the  county  court,  who  may  appoint  an  arbi- 
trator to  act  in  his  place. 

§  110.  Greek  schedule  of  compensation  and  scope  of 
act. 

Date  of  enactment. — February  21  (March  6),  1901, 
in  effect  (retroactively)  December  20,  1900  (January  2, 
1901). 

Injuries  compensated. — All  injuries  by  accidents  dur- 
ing or  because  of  the  employment  and  causing  death  or 
disability  lasting  more  than  four  days,  unless  brought 
on  intentionally  by  the  injured  person. 

Industries  covered. — Mines,  quarries,  and  metallurgi- 
gical  establishments. 

Persons  compensated. — All  workingmen  and  subor- 
dinate salaried  persons. 

Government  employes. — No  mention  of  government 
employes  is  made  in  the  law. 

Burden  of  payment. — Employer  carries  full    burden 


229  SUMMARY  OF  FOREIGN  LAWS.  §  HO 

of  payment  of  indemnities  during  first  three  months; 
after  three  months,  half  the  payments  of  pensions  are 
contributed  by  the  miners'  fund,  which  is  mainly  sup- 
ported by  a  tax  on  the  mines  and  metallurgical  estab- 
lishments, but  partly  by  contributions  from  the  work- 
ingmen's  mutual  aid  societies  in  these  establishments 
and  some  minor  sources. 
Compensation  for  death : 

(a)  If  death  occurs  immediately  or  within  three 

months:  (1)  Funeral  expenses  amount- 
ing to  60  drachmas  ($11.58);  (2)  pensions 
to  heirs  aggregating  pension  paid  for  total 
disability. 

(b)  If  death  occurs  three  months  after  injury 

or  later,  pensions  to  heirs  aggregating  75 
per  cent  of  pension  paid  during  life  of  the 
injured. 

(c)  All  pensions  to  heirs  are  distributed  as  fol- 

lows :  Equal  share  to  widow  and  children, 
or,  in  absence  of  widow  and  children,  equal 
share  to  father  and  mother. 

(d)  Pension   to   widow   ceases   on   her  remar- 

riage; to  male  children  at  16  years  of  age; 
to  female  children  on  their  marriage,  with 
payment  of  one  year's  pension  as  a  dowry. 

(e)  If  only  one  heir  survives,  he  is  entitled  to 

only  one-half  of  original  pension. 
Compensation  for  disability: 

(a)  Free  medical  and  surgical  treatment. 

(b)  An  allowance  of  50  per  cent  of  earnings  of 

injured  employe  during  first  three  months. 

(c)  If  permanently   disabled,   a  pension  of   50 

per  cent  of  earnings  in  case  of  total  dis- 
ability (including  loss  of  a  hand  or  foot)  ; 
in  case  of  partial  disability,  a  pension  of 
33  1-3  per  cent  of  earnings,  pension  pay- 
ments to  begin  after  end  of  third  month. 


§  in     WORKMEN'S  COMPENSATION  AND  INSURANCE.     230 

(d)  Pension    may    not    exceed    100    drachmas 

($19.30)  per  month  plus  25  per  cent  of  the 
excess  of  computed  pension  over  100 
drachmas  ($19.30). 

(e)  In  computing  pension  of  apprentices  and 

children,  no  wage  is  to  be  considered  less 
than  2.50  drachmas  (48  cents)  per  day. 

Revision  of  compensation. — Injured  employe  may 
present  a  new  petition,  or  the  council  of  the  miners'  fund 
may  order  a  new  examination,  whenever  there  is  rea- 
son to  believe  that  changes  have  occurred  in  the  degree 
of  disability. 

Insurance. — No  provision  is  made  by  the  law  for  the 
transfer  of  the  burden  of  payment  of  compensation  by 
insurance. 

Security  of  payments. — The  miners'  fund  guaran- 
tees payment  of  pensions  and  other  allowances,  and  has 
preferred  claim  upon  employer's  assets  in  cases  of  dis- 
solution or  forced  sale  of  establishment,  and  also  in 
cases  of  voluntary  transfer,  unless  the  new  proprietor 
assumes  the  obligations  under  the  law. 

Settlement  of  disputes. — Amount  of  pension  is  settled 
by  the  council  of  the  miners'  fund,  and  appeals  against 
its  decisions  may  be  carried  into  the  ordinary  courts. 

§  111.     Hungarian  schedule. 

Date  of  enactment. — April  9,  1907,  in  effect  July  1, 
1907. 

Injuries  compensated. — Injuries  by  accident  in  the 
course  of  the  employment  causing  death  or  disability 
for  more  than  three  days.  Injuries  caused  intentionally 
are  not  compensated  unless  fatal. 

Industries  covered. — All  factories  subject  to  inspec- 
tion, mines,  quarries,  metallurgical  establishments, 
building  trades,  lumbering,  construction  work,  ship- 
building, slaughterhouses,  pharmacies,  sanatoria,  thea- 
ters, institutes  of  art  and  science. 


231  SUMMARY  OF  FOREIGN  LAWS.  §  HI 

Persons  compensated. — All  employes  in  industries 
enumerated. 

Government  employes. — Act  covers  government  em- 
ployes in  state,  municipal,  and  communal  industries  enu- 
merated above. 

Burden  of  payment. — All  benefits  and  cost  of  treat- 
ment for  first  ten  weeks  provided  by  sick  funds  to  which 
employers  and  employes  contribute  equally.  Beginning 
with  eleventh  week  entire  cost  is  defrayed  by  employ- 
ers through  the  accident  fund. 

Compensation  for  death: 

(a)  Funeral   benefit   of   twenty   times   average 

daily  wages. 

(b)  Pensions  to  heirs  not  exceeding  60  per  cent 

of  annual  earnings  of  deceased,  as  fol- 
lows-— 

.Widow,  20  per  cent  of  annual  earnings  until 
death  or  remarriage;  in  latter  case  a  final 
sum  equal  to  60  per  cent  of  annual  earn- 
ings ;  or  to  dependent  widower  20  per  cent 
during  disability. 

Each  child  16  years  of  age  or  under,  15  per 
cent  if  one  parent  survives,  30  per  cent  if 
neither  survives;  payments  to  consort  and 
children  reduced  proportionately  if  they 
aggregate  more  than  60  per  cent. 

Dependent  parents  and  grandparents  if  there 
is  a  residue  after  providing  for  above  heirs, 
20  per  cent  or  less. 

Dependent  orphan  grandchildren  15  years  of 
age  or  under,  if  there  is  a  residue  after  pro- 
viding for  above  heirs,  20  per  cent  or  less. 

(c)  In  computing  pensions  the  excess  of  annual 

earnings  above  2,400  crowns  ($487.20)  is 
not  considered. 
Compensation  for  disability: 

(a)     Free  medical  and  surgical  treatment  pro- 


§H2     WORKMEN'S  COMPENSATION  AND  INSURANCE.     232 

vided  first  ten  weeks  by  sick  fund,  and  af- 
terwards by  accident  fund. 

(b)  For  temporary  or  permanent  total  disabil- 

ity, 50  per  cent  of  average  daily  wages  but 
not  exceeding  4  crowns  (81  cents)  for  first 
ten  weeks,  provided  by  sick  fund;  begin- 
ning with  eleventh  week,  60  per  cent  of 
average  annual  earnings,  provided  by  ac- 
cident fund. 

(c)  For  complete  helplessness  necessitating  at- 

tendance payments  may  be  increased  to 
100  per  cent  of  annual  earnings. 

(d)  For  partial  disability  a  corresponding  por- 

tion of  full  pension. 

(e)  In  computing  pensions  the  excess  of  annual 

earnings  above  2,400  crowns  ($487.20)  is 
not  considered. 

Revision  of  compensation. — Whenever  a  change  in 
condition  of  injured  person  occurs  the  accident  fund  or 
the  injured  person  may  ask  for  a  revision  of  the  benefits. 

Insurance. — Payments  are  met  by  a  state  insurance 
institution,  in  which  all  employes  are  required  to  be  in- 
sured at  the  expense  of  employers. 

Security  of  payment. — Guaranteed  by  the  state. 

Settlement  of  disputes. — Disputes  are  settled  by  ar- 
bitration courts^  consisting  of  a  presiding  judge  and  an 
equal  number  of  representatives  of  workmen  and  em- 
ployers. 

§  112.     Italian  schedule. 

Date  of  enactment. — March  17,  1898,  in  effect  Sep- 
tember 17,  1898.  Amended  June  29,  1903.  Promul- 
gated in  codified  form  January  31,  1904. 

Injuries  compensated. — All  injuries  sustained  by 
workmen  or  salaried  employes  during  or  on  account  of 
labor.  If  due  to  wilful  misconduct,  employer  may  be 
reimbursed  through  criminal  action. 


233  SUMMARY  OF  FOREIGN  LAWS.  §  1 12 

Industries  covered. — Mines,  quarries,  building 
trades;  light,  heat,  and  power  plants;  arsenals;  maritime 
construction  work;  transportation;  industries  requiring 
the  use  or  handling  of  explosives ;  all  industrial  or  agri- 
cultural work  in  proximity  to  power  machinery;  where 
more  than  five  persons  are  employed  in  engineering  con- 
struction work;  operations  for  protection  against  land- 
slides, floods,  hailstorms;  logging  and  timber  rafting, 
and  shipbuilding. 

Persons  compensated. — All  workmen  and  appren- 
tices and  overseers  receiving  not  more  than  7  liras 
($1.35)  per  day  and  paid  at  intervals  of  one  month  or 
less. 

Government  employes. — Act  applies  to  employment 
in  state,  provincial  and  communal  industries  enumer- 
ated above  unless  specially  provided  for,  and  to  work 
performed  for  a  government  institution  under  contract 
or  concession. 

Burden  of  payment. — Entire  cost  of  compensation 
rests  upon  employer. 

Compensation  for  death. — If  within  two  years  after 
the  accident,  five  times  annual  wages  of  deceased 
workman,  with  a  maximum  of  10,000  liras  ($1,- 
930),  distributed  to — 

(a)  Surviving  consort  two-fifths  or  indemnity  if 
there  are  children;  one-half  of  indemnity  if 
there  are  dependent  ascendants;  three- 
fifths  of  indemnity  if  only  dependent  broth- 
ers or  sisters;  entire  indemnity  in  absence 
of  heirs  enumerated. 

Children,  amounts  sufficient  to  purchase  an 
annuity  of  equal  amount  for  each  child  un- 
der 12  years  of  age,  and  one-half  of  such 
annuity  for  each  child  from  12  to  18  years 
of  age. 
Each  dependent  parent  or  grandparent,  if 


§H2     WORKMEN'S  COMPENSATION  AND  INSURANCE.     234 

there  are  no  children,  annuity  of  equal 
amount  for  life. 

Dependent  brothers  or  sisters  less  than  18 
years  of  age  or  incapable  of  performing 
labor  by  reason  of  a  mental  or  physical  de- 
fect, if  there  are  no  children  or  dependent 
ascendants,  annuities  distributed  upon 
same  principle  as  in  case  of  children, 
(b)  In  absence  of  heirs  indemnity  is  turned  into 
a  special  fund  for  immediate  aid  to  injured, 
payment  of  indemnities  for  insolvent  em- 
ployers, and  prevention  of  accidents. 
Compensation  for  disability: 

(a)  Cost  of  first  medical  and  surgical  treatment. 

(b)  An  indemnity  in  case  of  permanent  disabil- 

ity or  six  times  annual  earnings,  but  not 
less  than  3,000  liras  ($579)  if  totally  dis- 
abled, and  six  times  the  loss  of  annual 
earning  capacity  if  partially  disabled,  earn- 
ings in  latter  case  to  be  considered  as  not 
less  than  500  liras  ($96.50). 

(c)  A  daily  allowance  in  case  of  temporary  dis- 

ability of  one-half  the  wages   of  injured 
workman,  payable  for  not  more  than  three 
months,  if  totally  disabled,  and  equal  to 
one-half  the  reduction  in  wages  occasioned 
by  the  injury,  if  partially  disabled. 
Revision  of  compensation. — Both  workman  and  in- 
surer may  ask  for  a  revision  of  compensation  within  two 
years  after  accident. 

Insurance. — Employers  must  insure  their  employes 
in  (a)  the  national  accident  insurance  fund,  (b)  an  au- 
thorized insurance  company,  (c)  an  association  of  em- 
ployers for  mutual  insurance  against  accidents,  or  (d) 
a  private  employers'  insurance  fund. 

Security  of  payments. — Payments  are  guaranteed  by 
state. 


235  SUMMARY  OF  FOREIGN  LAWS.  §  1 13 

Settlement  of  disputes. — In  cases  of  dispute  concern- 
ing temporary  disability  payments,  the  council  of  prud- 
hommes  or  the  pretor  of  the  locality  in  which  the  acci- 
dent occurred  has  authority  to  sit  in  final  judgment  if 
amount  involved  does  not  exceed  200  liras  ($38.60). 
Disputes  involving  larger  amounts  are  referred  for  set- 
tlement to  the  local  magistrates. 

§  113.     Luxemburg  schedule. 

Date  of  enactment. — April  5,  1902,  in  effect  April  15, 
1903.  Sick  insurance  law  enacted  July  31,  1901. 

Injuries  compensated. — All  injuries  by  accidents 
during  or  because  of  the  employment,  resulting  in  death 
or  disability  for  more  than  three  days,  unless  caused 
intentionally  by  the  victim  or  during  the  commission  of 
an  illegal  act. 

Industries  covered. — Mines,  quarries,  manufactories, 
metallurgical  establishments;  gas  and  electric  works; 
transportation  and  handling;  building  and  engineering 
construction,  and  certain  artisans'  shops  having  at  least 
five  employes  regularly  and  using  mechanical  motive 
power.  By  administrative  order  other  establishments 
may  become  subject  to  the  law  if  regarded  dangerous. 

Persons  compensated. — Workmen  and  those  super- 
vising and  technical  officials  whose  annual  earnings  are 
less  than  3,000  francs  ($579).  Certain  other  classes  of 
persons  may  be  voluntarily  insured. 

Government  employes. — Act  applies  to  government 
telegraph  and  telephone  services,  public  works  con- 
ducted by  public  agencies,  and  other  governmental  in- 
dustrial establishments,  unless  other  provisions  are 
made  for  pensioning  employes.  Penal  institutions  are 
not  included. 

Burden  of  payment. — Benefits  and  cost  of  treatment 
first  thirteen  weeks  provided  by  sick  benefit  funds,  to 
which  employers  contribute  one-third  and  employes 
two-thirds,  if  injured  person  is  insured  against  sickness; 


§H3     WORKMEN'S  COMPENSATION  AND  INSURANCE.     236 

if  not,  because  employed  less  than  one  week,  by  an  acci- 
dent insurance  association  supported  by  contributions  of 
employers;  if  not  insured  for  other  reasons,  by  the  em- 
ployer direct;  all  benefits  and  treatment  after  thirteen 
weeks  paid  by  accident  insurance  association. 
Compensation  for  death: 

(a)  Funeral  expenses,  one-fifteenth  of  the  an- 

nual earnings,  but  not  less  than  40  francs 
($7.72)  nor  more  than  80  francs  ($15.44). 

(b)  Pensions,  not  to  exceed  60  per  cent  of  earn- 

ings of  deceased,  to — 

Widow,  20  per  cent  until  death  or  remar- 
riage; in  the  latter  case  a  lump  sum  equal 
to  60  per  cent;  same  payment  to  a  depend- 
ent widower. 

Each  child,  20  per  cent  until  15  years  of  age, 
even  if  father  survives,  provided  he  aban- 
doned them,  or  the  mother  who  was  killed 
was  their  main  support. 

Dependent  heirs  in  an  ascending  line,  20  per 
cent. 

Dependent  orphan  grandchildren,  20  per  cent 
until  15  years  of  age. 

Widow  and  children  have  the  preference 
over  other  heirs. 

(c)  In   computing   pensions    only   one-third   of 

excess  of  annual  earnings  over  1,500  francs 
($289.50)  is  considered. 
Compensation  for  disability: 

(a)  Entire  cost  of  medical  and  surgical  treat- 

ment. 

(b)  For  temporary  or  permanent  total  disabil- 

ity, from  third  day  to  end  of  fourth  week, 
50  per  cent,  and  from  fifth  to  end  of  thir- 
teenth week,  60  per  cent  of  wages  of  per- 
sons similarly  employed;  after  thirteen 


237  SUMMARY  OF  FOREIGN  LAWS.  - 

weeks,  66  2-3  per  cent  of  annual  earnings 
of  injured  person. 

(c)  For  partial  disability  a  portion  of  above  (de- 

pending upon  degree  of  disability),  which 
may  be  increased  to  full  amount  as  long  as 
injured  employe  is  without  employment. 

(d)  Lump  sum  payments  may  be  substituted 

for  pensions  when  degree  of  disability  is 
not  greater  than  20  per  cent. 

(e)  In  computing  pensions  only  one-third  of  ex- 

cess of  annual  earnings  over  1,500  francs 
($289.50)  is  considered. 

Revision  of  compensation. — Demands  for  change  of 
amount  of  compensation  may  be  made  within  three 
years. 

Insurance. — Payments  are  met  by  mutual  accident 
insurance  association  of  employers  in  which  all  employes 
must  be  insured  at  expense  of  employers. 

Security  of  payments. — Insurance  association  con- 
ducted under  state  supervision. 

Settlement  of  disputes. — Appeals  from  the  decisions 
of  the  association  may  be  carried  within  forty  days  to  a 
justice  of  the  peace,  who  is  required  to  invite  two  dele- 
gates, representing  employer  and  employe,  to  assist  in 
an  advisory  capacity.  Further  appeals  may  be  taken  to 
the  higher  courts. 

§  114.     Netherlands  schedule. 

Date  of  enactment. — January  2,  1901,  in  effect  June 
1,  1901.  Other  acts  February  3  and  December  8,  1902, 
and  July  24,  1903. 

Injuries  compensated. — All  injuries  caused  by  acci- 
dent in  the  course  of  the  employment  and  causing  death 
or  disability  for  over  two  days,  unless  brought  on  inten- 
tionally. If  due  to  intoxication,  compensation  is  re- 
duced one-half,  and  if  death  results  no  compensation  is 
paid. 


§  H4     WORKMEN'S  COMPENSATION  AND  INSURANCE.     238 

Industries  covered. — Practically  all  manufacturing, 
mining,  quarrying,  building,  engineering  construction, 
and  transportation;  fishing  in  internal  waters;  estab- 
lishments using  mechanical  motive  power,  or  explosive 
or  inflammable  materials,  and  mercantile  establishments 
handling  such  materials. 

Persons  compensated. — All  workmen,  including  ap- 
prentices. 

Government  employes. — All  state,  provincial,  and 
communal  employes  are  included  when  engaged  in  any 
of  the  industries  enumerated. 

Burden  of  payment. — The  entire  expense  rests  upon 
the  employer. 

Compensation  for  death: 

(a)  Funeral   benefit    of   thirty   times     average 

daily  earnings  of  deceased. 

(b)  Pensions  to  heirs  of  not  over  60  per  cent  of 

earnings  of  deceased,  distributed  to — 

Widow,  30  per  cent  of  earnings,  until  death 
or  remarriage;  in  latter  case  two  years' 
payments  as  a  settlement;  or  to  dependent 
widower,  a  pension  equal  to  cost  of  sup- 
port, but  not  over  30  per  cent  of  earnings 
of  deceased. 

Each  child  under  16  years  of  age,  15  per  cent 

if  one  parent  survives  and  20  per  cent  if  both 
are  dead. 

Dependent  parents,  and  in  their  absence  to 
grandparents,  not  over  30  per  cent. 

Orphan  grandchildren,  not  over  20  per  cent. 

Dependent  parents-in-law,  not  over  30  per 
cent. 

Widow  and  children  to  be  preferred  over  all 
other  heirs,  and  their  respective  shares  to 
be  reduced  proportionately  when  aggre- 
gating over  60  per  cent. 

(c)  In  computing  pensions,  wages  higher  than 


239  SUMMARY  OF  FOREIGN  LAWS.  §  1 14 

four  florins  ($1.61)  per  day  are  to  be  con- 
sidered as  of  that  amount. 
Compensation  for  disability: 

(a)  Free  medical  and  surgical  treatment,  or  its 

cost. 

(b)  From  day  after  injury  until  forty-third  day, 

an  allowance  of  70  per  cent  of  daily  earn- 
ings, excluding  Sundays  and  holidays. 

(c)  From   forty-third  day  a  pension  of  above 

amount  during  total  disability  and  a  small- 
er pension  in  proportion  to  loss  of  earning 
power  if  partially  disabled. 

(d)  In  computing  pensions,  wages  higher  than 

four  florins  ($1.61)  per  day  are  to  be  con- 
sidered as  of  that  amount. 

Revision  of  compensation. — An  examination  of  con- 
dition of  victim  may  be  made  whenever  the  Royal  In- 
surance Bank  so  desires. 

Insurance. — Employers  may  insure  their  employes 
in  the  Royal  Insurance  Bank  (a  state  institution),  in  a 
private  company  or  association  operating  under  state 
supervision,  or  they  may  carry  the  burden  themselves. 
If  not  insured  in  the  Royal  Insurance  Bank,  a  sufficient 
guaranty  must  be  deposited  with  the  latter.  Employers 
must  bear  a  proportionate  share  of  the  expense  of  ad- 
ministration of  the  Royal  Insurance  Bank,  whether  they 
insure  in  it  or  not. 

Security  of  payments. — Compensation  payments  are 
guaranteed  by  the  state. 

Settlement  of  disputes. — Appeals  may  be  taken  from 
decisions  of  the  Royal  Insurance  Bank  to  local  arbitra- 
tion councils,  in  which  employers  and  employes  are 
equally  represented,  and  from  them  to  a  central  arbitra- 
tion council  whose  decisions  are  final. 

§  115.     New  Zealand  schedule. 

Date  of  enactment. — October  18,  1900,  to  take  effect 


§iiS     WORKMEN'S  COMPENSATION  AND  INSURANCE.     240 

at  a  date  fixed  by  the  governor  by  order  in  council. 
Amended  October  3,  1902,  November  23,  1903,  Novem- 
ber 8,  1904,  October  31,  1905,  and  October  29,  1906. 

Injuries  compensated. — All  injuries  to  workmen  aris- 
ing out  of  and  in  the  course  of  the  employment  causing 
death  or  disability  for  at  least  one  week,  except  when 
due  to  serious  and  willful  misconduct  of  the  workman 
injured. 

Industries  covered. — Industrial,  commercial,  manu- 
facturing, building,  agricultural,  pastoral,  mining,  quar- 
rying, engineering,  and  hazardous  work  carried  on  by 
or  on  behalf  of  the  employer  as  a  part  of  his  trade  or 
business. 

Persons  compensated. — All  persons  under  contract 
with  an  employer. 

Government  employes. — Act  applies  to  work  carried 
on  by  or  on  behalf  of  the  government  or  any  local  au- 
thority if  it  would,  in  case  of  a  private  employer,  be  an 
employment  to  which  the  act  applies. 

Burden  of  payment. — Entire  cost  of  compensation 
rests  upon  employer;  but  if  there  are  contractors,  then 
on  such  contractors  and  the  principal,  jointly  and  sev- 
erally. 

Compensation  for  death: 

(a)  A  sum  equal  to  three  years'  earnings,  but 

not  less  than  £200  ($973.30)  nor  more 
than  £400  ($1,946.60),  to  those  wholly 
dependent  upon  earnings  of  deceased. 

(b)  A  sum  less  than  above  amount  if  depend- 

ents were  partly  dependent  upon  deceased, 
to  be  agreed  upon  by  the  parties  or  fixed 
by  a  magistrate  or  by  the  arbitration  court. 

(c)  Reasonable  expenses  of  medical  attendance 

and  burial,  not  exceeding  £30  ($146),  in 
case  deceased  leaves  no  dependents. 
Compensation  for  disability: 

(a)     A  weekly  payment  during  disability  not  ex- 


241  SUMMARY  OF  FOREIGN  LAWS.  §  1 15 

ceeding  50  per  cent  of  employe's  average 
weekly  earnings  during  the  previous 
twelve  months,  but  not  to  exceed  £2 
($9.73)  nor  to  fall  below  £1  ($4.87)  where 
employe's  ordinary  rate  of  pay  at  time  of 
accident  was  not  less  than  30  shillings 
($7.30)  per  week.  Total  liability  of  em- 
ployer is  limited  to  £300  ($1,459.95).  No 
payment  is  made  for  first  week  if  disability 
does  not  continue  for  a  longer  period  than 
two  weeks. 

(b)  A  lump  sum  may  be  substituted  for  weekly 
payments  for  permanent  total  or  partial 
disability,  to  be  agreed  on  by  the  parties 
or,  in  default  of  agreement,  determined  by 
the  court  of  arbitration. 

Revision  of  benefits. — Weekly  payments  may  be  re- 
vised at  request  of  either  party. 

Insurance. — Employers  may  contract  with  their  em- 
ployes for  substitution  of  a  scheme  of  compensation, 
benefit,  or  insurance  in  place  of  the  provisions  of  the 
act  if  the  scheme  is  shown  to  be  not  less  favorable  to  the 
general  body  of  employes  and  their  dependents  than  the 
provisions  of  the  act.  In  such  case  the  employer  is  liable 
only  in  accordance  with  the  scheme. 

Security  of  payments. — When  an  employer  becomes 
liable  under  this  act  to  pay  compensation,  and  is  entitled 
to  any  sum  from  insurers  on  account  of  the  amount  due 
to  a  workman  under  such  liability,  then  in  the  event  of 
his  becoming  insolvent,  such  workman  has  a  first  claim 
upon  this  sum.  Compensation  for  injuries  sustained  in 
the  course  of  employment  in  or  about  a  mine,  factory, 
building,  or  vessel  is  deemed  a  charge  upon  the  employ- 
er's interest  in  such  property  and  has  priority  over  all 
charges  other  than  those  lawfully  existing  at  the  time  of 
the  commencement  of  the  act. 

Settlement  of  disputes. — Disputes  arising  under  the 

16— BOYDWC 


§  n6    WORKMEN'S  COMPENSATION  AND  INSURANCE.    242 

act  are  settled  by  the  court  of  arbitration  under  the  in- 
dustrial arbitration  act.  Where  claim  for  compensation 
does  not  exceed  £200  ($973.30)  proceedings  may  be 
instituted  before  a  magistrate  whose  decision  is  final, 
except  that  in  cases  where  amount  involved  does  not 
exceed  £50  ($243.33)  either  party  may,  with  the  con- 
sent of  the  magistrate,  and  in  cases  where  the  claim  ex- 
ceeds £50  ($243.33),  without  such  consent,  appeal  from 
the  decision  on  any  point  of  law. 

§  116.  Norwegian  schedule  of  compensation  and 
scope  of  act. 

Date  of  enactment. — July  23,  1894,  in  effect  July  1, 
1895. 

Injuries  compensated. — All  injuries  by  industrial  ac- 
cidents, causing  death,  or  disability,  for  more  than  four 
weeks,  or  requiring  treatment  after  that  period,  unless 
intentionally  brought  about  by  the  injured  person. 

Industries  covered. — Practically  all  factories  and 
workshops  using  other  than  hand  power;  mines  and 
quarries ;  the  handling  of  ice,  explosives,  or  inflammable 
wares;  building  and  engineering  construction,  electric 
work,  transportation,  salvage,  and  diving,  chimney 
sweeping,  and  fire  extinguishing.  Employes  in  other  in- 
dustries may  avail  themselves  of  this  insurance  system. 

Persons  compensated. — All  workingmen  and  over- 
seers. 

Government  employes. — Act  covers  employes  in  gov- 
ernment or  communal  service,  when  engaged  in  any  of 
the  industries  enumerated  above,  unless  at  least  equal 
compensation  is  provided  by  special  regulation. 

Burden  of  payment. — Cost  of  compensation  rests 
upon  employer. 

Compensation  in  case  of  death : 

(a)  Funeral  benefit  of  50  crowns  ($13.40). 

(b)  Pensions  to  heirs  not  exceeding  50  per  cent 

of  earnings,  to  be  distributed  to— 


243  SUMMARY  OF  FOREIGN  LAWS.  §Il6 

Widow,  20  per  cent  of  earnings,  until  death 
or  remarriage;  in  the  latter  case  a  lump 
sum  equal  to  three  annual  payments;  or 
dependent  widower,  20  per  cent  of  annual 
earnings  of  deceased  while  disability  lasts. 

Each  child,  15  per  cent  of  annual  earnings 
till  age  of  15  years  if  one  parent  survives, 
or  20  per  cent  if  neither  survives;  15  per 
cent  for  each  parent  to  each  child  when 
both  parents  have  died  as  result  of  injuries. 

Dependent  relatives  in  ascending  line,  if 
there  is  a  residue  after  providing  for  above- 
mentioned  heirs,  a  pension  of  20  per  cent 
of  earnings  until  death  or  cessation  of 
need,  to  be  divided  equally;  but  living  par- 
ents exclude  grandparents  from  participa- 
tion. 

(c)  In  computing  pensions,  the  excess  of  annual 

earnings  over  1,200  crowns  ($321.60)  is 
not  considered. 

(d)  Pension  payments  are  in  addition  to  prior 

allowances  granted  for  disability. 
Compensation  for  disability: 

(a)  Free  medical  and  surgical  treatment,  or  cost 

of  same,  after  four  weeks. 

(b)  If  employe  is  totally  disabled  for  more  than 

four  weeks  an  allowance  of  60  per  cent  of 
the  earnings,  but  not  less  than  0.50  crowns 
(13  cents)  per  diem  or  150  crowns  ($40.20) 
per  annum ;  and  a  proportionate  allowance 
in  case  of  partial  disability. 

(c)  If  injured  employe  is  forced  to  stay  in  a  hos- 

pital, dependents  receive  allowances  dur- 
ing that  time  equal  to  the  pensions  granted 
in  cases  of  death. 

(d)  If  injured  employe  is  not  a  member  of  a 

sick  insurance  fund  he  is  entitled  to  receive 


§  ii/     WORKMEN'S  COMPENSATION  AND  INSURANCE.     244 

from  employer  directly  sick  benefits  and 
free  medical  treatment  from  first  day  of  in- 
jury. 

(e)  In  computing  allowances  the  excess  of  an- 
nual earnings  over  1,200  crowns  ($321.60) 
is  not  considered. 

Revision  of  compensation. — Compensation  is  sub- 
ject to  revision  upon  demand  of  either  the  beneficiary  or 
the  insurance  office. 

Insurance. — A  state  central  insurance  office  is  es- 
tablished for  the  entire  Kingdom,  in  which  all  employes 
subject  to  the  law  must  be  insured  by  employer,  unless 
he  is,  for  special  reasons,  relieved  by  royal  order  from 
the  obligation  of  insurance. 

Security  of  payments. — Insurance  office  is  guaran- 
teed by  the  state. 

Settlement  of  disputes. — Appeals  from  decisions  of 
insurance  office  may  be  entered  within  six  weeks  with 
the  special  insurance  commission. 

§  117.  Queensland  schedule  of  compensation  and 
scope  of  act. 

Date  of  enactment. — December  20,  1905,  in  effect 
March  31,  1906. 

Injuries  compensated. — All  injuries  by  accident,  aris- 
ing out  of  and  in  the  course  of  the  employment,  which 
cause  death  or  disable  a  workman  for  at  least  two  weeks 
from  earning  full  wages  at  the  work  at  which  he  was 
employed,  except  when  the  injury  is  directly  attribut- 
able to  his  serious  and  wilful  misconduct,  or  when  it 
occurs  while  proceeding  to  or  from  his  place  of  work. 

Industries  covered. — Industrial,  commercial,  manu- 
facturing, building,  agricultural,  pastoral,  mining,  quar- 
rying, engineering,  or  hazardous  work  carried  on  by  or 
on  behalf  of  the  employer  as  a  part  of  his  trade  or  busi- 
ness. 

Persons  compensated. — All  persons  under  contract 
with  an  employer. 


245  SUMMARY  OF  FOREIGN  LAWS.  §  1 17 

Government  employes. — Act  applies  to  any  work 
carried  on  by  or  on  behalf  of  the  government  or  any 
local  authority,  if  it  would,  in  case  of  a  private  employer, 
be  an  employment  to  which  the  act  applies. 

Burden  of  payment. — Entire  cost  of  compensation 
rests  upon  employer. 

Compensation  for  death: 

(a)  A  sum  equal  to  three  years'  earnings,  but 

not  less  than  £200  ($973.30)  nor  more 
than  £400  ($1,946.60),  to  those  wholly 
dependent  upon  earnings  of  deceased;  but 
aged  and  infirm  employes  may  agree  in  ad- 
vance to  accept  a  reduced  amount. 

(b)  A  sum  less  than  above  if  heirs  are  only 

partly  dependent. 

(c)  Reasonable  expenses  of  medical  attendance 

and  burial,  not  exceeding  £30  ($146),  if 
deceased  leaves  no  dependents. 
Compensation  for  disability: 

(a)  A  weekly  payment  during  disability  after 

second  week,  not  exceeding  50  per  cent  of 
employe's  average  weekly  earnings  during 
the  previous  twelve  months,  such  weekly 
payments  not  to  exceed  £1  ($4.87),  and 
total  liability  not  to  exceed  £400  ($1,- 
946.60) ;  except  that  aged  and  infirm  em- 
ployes may  agree  in  advance  to  accept  a 
reduced  amount. 

(b)  A  weekly  payment  during  partial  disability 

after  second  week,  not  exceeding  one-half 
of  difference  between  the  employe's  aver- 
age weekly  earnings  before  the  accident 
and  the  average  weekly  amount  which  he 
is  earning  or  able  to  earn  after  injury. 

(c)  Minors  may  be  allowed  full  earnings  dur- 

ing incapacity,  not  exceeding  10  shillings 
($2.43)  weekly. 


§  ii8    WORKMEN'S  COMPENSATION  AND  INSURANCE.     246 

(d)  A  lump  sum  may  be  substituted  for  weekly 
payments  after  three  months,  on  applica- 
tion of  employer,  the  amount  to  be  agreed 
upon  or,  in  default  of  agreement,  to  be  de- 
termined by  a  police  magistrate. 

Revision  of  compensation. — Weekly  payments  may 
be  revised  by  a  police  magistrate  at  request  of  either 
party. 

Insurance. — Employers  may  contract  with  their  em- 
ployes for  substitution  of  a  scheme  of  compensation, 
benefit,  or  insurance,  in  place  of  the  provisions  of  the 
act  if  the  scheme  is  officially  certified  to  be  not  less  fa- 
vorable to  the  employes  and  their  dependents  than  the 
provisions  of  the  act.  In  such  case  the  employer  is  liable 
only  in  accordance  with  the  scheme. 

Security  of  payments. — When  an  employer  becomes 
liable  under  the  act  to  pay  compensation,  and  is  entitled 
to  any  sum  from  insurers  on  account  of  the  amount  due 
to  a  worker  under  such  liability,  then  in  the  event  of  his 
becoming  insolvent,  such  workman  has  a  first  claim 
upon  this  sum  for  the  amount  so  due. 

Settlement  of  disputes. — Disputes  arising  under  the 
act  are  heard  and  determined  by  a  police  magistrate, 
whose  decision  is  final,  except  that  either  party  may 
appeal  from  this  decision  on  any  point  of  law  with  the 
latter's  leave  if  the  claim  does  not  exceed  £50  ($243.33), 
or  without  his  leave  if  it  exceeds  that  amount. 

§  118.    Russian  schedule. 

Date  of  enactment. — June  2  (15),  1903,  in  effect 
January  1  (14),  1904. 

Injuries  compensated. — All  injuries  by  accident  occa- 
sioned by  or  on  account  of  the  work  and  causing  death 
or  disability  for  more  than  three  days,  unless  brought 
on  intentionally  by  the  victim  or  due  to  gross  impru- 
dence. 

Industries   covered. — Metallurgical   and  mining  es- 


247  SUMMARY  OF  FOREIGN  LAWS.  §  1 1 8 

tablishments  and  factories  and  workshops  using  other 
than  hand  power,  but  exclusive  of  shops  of  private  rail- 
road and  steamship  companies  and  certain  rural  indus- 
trial establishments. 

Persons  compensated. — Workmen  and  those  techni- 
cal officials  whose  annual  earnings  do  not  exceed  1,500 
rubles  ($772.50). 

Government  employes. — Act  applies  to  mining, 
metallurgical,  and  manufacturing  establishments  of 
municipal  and  zemstvo  governments,  but  not  to  na- 
tional government  employes,  for  whom  special  regula- 
tions exist. 

Burden  of  payment. — Entire  burden  of  payment  rests 
upon  employer. 

Compensation  for  death: 

(a)  Funeral  expenses  not  exceeding  30  rubles 

($15.45)  for  an  adult  and  15  rubles  ($7.73)  - 
for  a  child  under  15  years  of  age. 

(b)  Pensions  to  dependent  heirs  not  exceeding 

66  2-3  per  cent  of  annual  earnings  of  vic- 
tim, distributed  to — 

.Widow,  33  1-3  per  cent  until  death  or  remar- 
riage; in  the  latter  case  a  lump  sum  equal 
to  three  annual  payments. 

Each  child  until  age  of  15  years,  16  2-3  per 
cent  if  one  parent  survives  and  25  per  cent 
if  neither  parent  survives. 

Dependent  heirs  in  ascending  line,  16  2-3  per 
cent. 

Each  dependent  orphan  brother  and  sister 
until  15  years  of  age,  16  2-3  per  cent. 

Widow  and  children  take  precedence  over 
other  dependent  heirs,  who  share  the  re- 
mainder in  equal  parts. 

'(c)  Pension  may,  by  mutual  consent  of  em- 
ployer and  beneficiary,  be  replaced  by  sin- 
gle payment  of  ten  times  amount  of  an- 


§u8     WORKMEN'S  COMPENSATION  AND  INSURANCE.     248 

nual  pension  and,  in  case  of  children,  pen- 
sion multiplied  by  the  number  of  years  re- 
maining for  pension  payments,  but  not  ex- 
ceeding ten. 
Compensation  for  disability: 

(a)  Free  medical  and  surgical  treatment  or  re- 

imbursement of  expense  of  same. 

(b)  If  permanently  disabled,  a  pension  of  66  2-3 

per  cent  of  annual  earnings  of  victim  in 
case  of  total  disability,  and  a  pension  pro- 
portionate to  degree  of  incapacity  in  case 
of  partial  disability,  to  be  paid  from  time 
when  degree  of  permanent  disability  was 
determined;  if  amount  of  pension  exceeds 
that  of  previous  allowance  for  temporary 
disability,  difference  between  the  two  dur- 
ing the  period  of  disability  is  paid  to  per- 
manently injured  employe. 

(c)  Pension   may,   by  mutual   consent   of   em- 

ployer and  beneficiary,  be  replaced  by  a 
single  payment  of  ten  times  amount  of  an- 
nual pension. 

(d)  If   temporarily   disabled,    an   allowance    of 

50  per  cent  of  actual  wages  of  victim  from 
day  of  accident  until  complete  recovery 
from  disability  or  the  determining  of  de- 
gree of  permanent  disability. 

Revision  of  compensation. — Demands  for  revision 
of  payments  or  to  secure  a  pension  previously  refused 
may  be  made  by  either  party  within  three  years. 

Insurance. — Employers  may  transfer  burden  of  pay- 
ment of  compensation  by  insuring  their  employes  in  au- 
thorized insurance  companies  or  societies. 

Security  of  payments. — On  retiring  from  business 
employer  must  guarantee  payments  by  insurance  or  by 
deposit  with  a  state  bank.  In  case  of  insolvency,  pay- 
ments constitute  a  preferred  claim. 


249  SUMMARY  OF  FOREIGN  LAWS. 

Settlements  of  disputes. — Disputes  may  be  carried 
into  courts  as  other  civil  cases.  Such  cases  are  exempt 
from  court  fees,  the  documents  are  free  from  stamp  tax, 
and  attorney's  fees  are  fixed  by  law. 

§  119.     South  Australian  schedule. 

Date  of  enactment. — December  5,  1900,  in  effect  not 
earlier  than  June  1,  1901. 

Injuries  compensated. — All  injuries  to  workmen 
arising  out  of  and  in  the  course  of  the  employment  caus- 
ing death  or  disability  for  at  least  one  week,  except 
when  due  to  serious  willful  misconduct  of  the  workman 
injured. 

Industries  covered. — Railways,  waterworks,  tram- 
ways, electric  lighting  works,  factories,  mines,  quarries, 
engineering  and  building  work,  employments  declared 
by  a  proclamation  of  the  governor  upon  addresses  from 
both  houses  of  parliament  to  be  dangerous  or  injurious 
to  health  or  dangerous  to  life  or  limb,  and  agricultural 
pursuits  where  mechanical  motive  power  is  used. 

Persons  compensated. — All  persons  engaged  in  man- 
ual labor  or  otherwise. 

Government  employes. — Act  applies  to  civilian  per- 
sons employed  under  the  Crown  to  whom  it  would  ap- 
ply if  the  employer  were  a  private  person. 

Burden  of  payment. — Entire  cost  of  compensation 
rests  upon  employer. 

Compensation  for  death: 

(a)  A  sum  equal  to  three  years'  earnings,  but 

not  less  than  £150  ($729.98)  nor  more 
than  £300  ($1,459.95),  to  those  wholly 
dependent  upon  earnings  of  deceased. 

(b)  A  sum  less  than  above  amount  if  depend- 

ents were  partly  dependent  upon  deceased, 
to  be  agreed  upon  by  the  parties  or  fixed 
by  arbitration. 

(c)  Reasonable  expenses  of  medical  attendance 


§H9    WORKMEN'S  COMPENSATION  AND  INSURANCE.     250 

and  burial  not  exceeding   £50  ($243.33), 
if  deceased  leaves  no  dependents. 
Compensation  for  disability: 

(a)  A  weekly  payment  during  disability  after 

first  week,  not  exceeding  50  per  cent  of 
employe's  average  weekly  earnings  during 
the  previous  twelve  months,  such  weekly 
payments  not  to  exceed  £1  ($4.87)  nor,  in 
case  of  total  incapacity,  to  be  less  than  7s. 
6d.  ($1.83)  per  week,  and  total  disability 
not  to  exceed  £300  ($1,459.95) 

(b)  A  weekly  payment  during  partial  disability 

after  first  week  to  be  fixed  with  regard  to 
difference  between  employe's  average 
weekly  earnings  before  the  accident  and 
average  weekly  amount  which  he  is  earn- 
ing or  able  to  earn  after  injury. 

(c)  A      lump      sum      not      exceeding      £300 

($1,459.95)  may  be  substituted  for  weekly 
payments,  after  six  months,  on  applica- 
tion of  either  party,  the  amount  to  be  set- 
tled by  arbitration  under  the  act  in  default 
of  agreement. 

Revision  of  benefits. — Weekly  payments  may  be  re- 
vised at  request  of  either  party. 

Insurance. — Employers  may  contract  with  their  em- 
ployes for  substitution  of  a  scheme  of  compensation, 
benefit,  or  insurance  in  place  of  the  provisions  of  the  act, 
if  the  public  actuary  certifies  that  the  scheme  is  on  the 
whole  not  less  favorable  to  general  body  of  employes 
and  their  dependents  than  the  provisions  of  the  act.  In 
such  case  employer  is  liable  only  in  accordance  with  the 
scheme. 

Security  of  payments. — When  an  employer  becomes 
liable  under  the  act  to  pay  compensation,  and  is  entitled 
to  any  sum  from  insurers  on  account  of  the  amount  due 
to  a  workman  under  such  liability,  then  in  the  event  of 


251  SUMMARY  OF  FOREIGN  LAWS.  §  I2O 

his  becoming  insolvent  such  workman  has  a  first  claim 
upon  this  sum,  and  any  special  magistrate  may  direct  its 
payment  into  the  savings  bank  to  be  applied  to  payment 
of  compensations  due. 

Settlement  of  disputes. — Disputes  arising  under  the 
act  are  settled  by  the  arbitration  of  existing  committees 
representative  of  employers  and  employes,  or,  if  either 
party  objects,  by  a  single  arbitrator  agreed  on  by  the 
parties,  or,  in  absence  of  agreement,  by  a  special  magis- 
trate. An  arbitrator  appointed  by  the  magistrate  has 
all  the  powers  of  a  local  court. 

§  120.     Swedish  schedule. 

Date  of  enactment. — Approved  July  5,  1901 ;  in  effect 
January  1,  1903;  amended  June  3,  1904. 

Injuries  compensated. — Injuries  by  accidents  to 
workmen  resulting  from  the  employment  and  causing 
death  or  disability  for  more  than  sixty  days,  unless  due 
to  the  wilful  act  or  gross  negligence  of  the  victim  or  the 
wilful  act  of  a  third  person  who  has  neither  the  super- 
vision nor  the  direction  of  the  work. 

Industries  covered. — Practically  all  establishments 
engaged  in  forestry  work,  mining,  quarrying,  turf  and 
ice  cutting  and  handling,  manufacturing,  chimney 
sweeping,  rafting,  railway  and  tramway  service, 
handling  goods,  building  trades,  conduit,  road,  and 
other  construction  work,  and  gas,  electricity,  and  water 
distribution.  Employers  in  other  industries  may  insure 
their  employes  in  the  State  Insurance  Institute  and 
thereby  be  placed  under  the  provisions  of  the  act.  Em- 
ployes in  other  industries  may  secure  the  protection  of 
the  act  by  insuring  themselves  in  the  State  Insurance 
Institute. 

Persons  compensated. — Workmen  and  foremen. 

Government  employes. — Act  applies  to  employes  in 
the  State  and  communal  services  when  engaged  in  any 
of  the  industries  enumerated  above. 


§  I2O     WORKMEN'S  COMPENSATION  AND  INSURANCE.     252 

Burden  of  payment. — Entire  cost  of  compensation 
rests  upon  employer. 

Compensation  for  death. — When  death  results  from 
the  injury  within  two  years — 

(a)  Funeral  benefit  of  60  crowns  ($16.08). 

(b)  Annual    pensions    not    exceeding    in    the 

aggregate  300  crowns  ($80.40),  to  be  dis- 
tributed to  widow,  until   remarriage    120 
crowns  ($32.16)  ;  each  child  under  15  years 
of  age,  60  crowns  ($16.08). 
Compensation  for  disability: 

(a)  If  permanently  disabled  annual  pension  of 

300  crowns  ($80.40)  in  case  of  total  dis- 
ability and  a  smaller  sum,  corresponding  to 
loss  of  earning  power  in  case  of  partial  dis- 
ability, pension  to  begin  with  sixty-first 
day  of  disability,  or  later  if  permanent 
character  of  the  disability  was  not  then 
established. 

(b)  If  temporarily  disabled  for  more  than  sixty 

days,  1  crown  (27  cents)  per  day,  begin- 
ning with  sixty-first  day. 

Revision  of  compensation. — Suit  may  be  brought  in 
a  court  of  first  instance  by  injured  employe  for  a  revision 
of  compensation  within  two  years  from  the  date  of  the 
fixing  of  the  same. 

Insurance. — If  an  injured  person  receives  an  allow- 
ance or  pension  from  an  organization  which  is  supported 
entirely  or  in  part  by  the  employer,  or  if  the  victim  is 
insured  in  a  private  organization  by  his  employer,  the 
amounts  received  from  such  source  may  be  deducted 
from  payments  required  of  employers  under  the  act. 
Employers  may  transfer  burden  of  payment  of  compen- 
sation by  insuring  in  the  State  Insurance  Institute, 
created  for  this  purpose  by  the  act,  or  in  individual  cases 
purchase  annuities  for  pensioners  from  this  institution. 
Other  arrangements  may  be  made  between  employers 


253  SUMMARY  OF  FOREIGN  LAWS.  §  121 

and  employes  if  the  State  Insurance  Institute  finds  upon 
examination  that  they  are  not  unfavorable  to  the  em- 
ployes. 

Security  of  payments. — An  employer  may  be  re- 
quired to  furnish  adequate  security  for  the  payment  of 
the  pension  to  cover  the  contingency  of  his  neglecting 
to  pay  the  same,  of  his  retiring  from  business  or  leaving 
the  country,  or  of  his  becoming  insolvent.  If  he  fails 
to  furnish  security  he  may  be  required  to  pay  a  lump 
sum  equal  to  the  capital  value  of  the  pension  plus  the 
payments  and  interest  due,  which  amount,  in  the  case  of 
an  injured  employe,  must  be  invested  in  the  purchase  of 
an  annuity  from  the  Royal  Insurance  Institute. 

Settlement  of  disputes. — Disputes  may  be  settled 
either  by  arbitration  or  by  bringing  suit  in  a  court  of 
first  instance.  The  demand  for  arbitration  must  be 
made  or  the  suit  brought  within  two  years  after  the  acci- 
dent, or,  in  case  of  fatal  accidents,  within  two  years  after 
the  death  of  the  victim.  If  the  action  is  against  the 
State  Institute,  one  year  more  is  allowed. 

§  121.     Spanish  schedule. 

Date  of  enactment. — January  30,  1900,  in  effect  July 
28,  1900. 

Injuries  compensated. — All  injuries  by  accidents  to 
employes  in  the  course  of  and  by  reason  of  the  employ- 
ment causing  death  or  disability.  Compensation  may 
be  reduced  if  injured  person  was  engaged  in  an  illegal 
act. 

Industries  covered. — Manufacturing,  mines,  quar- 
ries, metallurgical  establishments,  construction  work, 
industries  injurious  to  health,  transportation,  gas  and 
electric  works,  street  cleaning,  theatres,  and  agricultural 
and  forestry  establishments  using  power  machinery. 

Persons  compensated. — Workmen  performing  man- 
ual labor,  including  helpers  and  apprentices. 

Government  employes. — Act  applies  to  employes  of 


§  i2i     WORKMEN'S  COMPENSATION  AND  INSURANCE.    254 

state  factories  and  other  government  establishments,  to 
labor  accidents  in  war  and  naval  departments,  and  to 
establishments  of  provincial  and  communal  govern- 
ments. 

Burden  of  payment. — Entire  cost  of  compensation 
rests  upon  employer. 

Compensation  for  death. — In  addition  to  any  prior 
benefits  paid  for  disability — 

(a)  Funeral  expenses  not  exceeding  100  pesetas 

($19.30). 

(b)  A  lump  sum  equal  to  two  years'  earnings  if 

widow  and  children  or  dependent  orphan 
grandchildren  under  16  years  survive; 
eighteen  months'  earnings  if  only  children 
or  orphan  grandchildren  survive;  one 
year's  earnings  if  only  widow  survives ;  ten 
months'  earnings  to  dependent  parents  or 
grandparents  over  60  years  of  age,  in  ab- 
sence of  widow  or  children,  if  two  or  more 
survive;  seven  months'  earnings  if  only 
one  parent  or  grandparent  survives. 

(c)  For  these  lump-sum  payments,  by  mutual 

consent,  the  following  pensions  may  be 
substituted:  Forty  per  cent  of  annual 
earnings  when  widow  and  children  or 
grandchildren  survive;  20  per  cent  of  an- 
nual earnings  when  only  widow  survives ; 
10  per  cent  to  each  dependent  parent  or 
grandparent  over  60  years  of  age,  when  no 
widow  or  children  survive,  but  not  over  30 
per  cent  in  the  aggregate ;  compensation  to 
widow  ceases  on  her  remarriage  and  to 
children  on  their  attaining  the  age  of  16 
years. 

(d)  In  these  cases  the  daily  earnings  to  be  con- 

sidered as  not  less  than  1.50  pesetas  (29 
cents). 


255  SUMMARY  OF  FOREIGN  LAWS.  §  121 

(e)     All  of  these  compensations  are  increased  by 
50  per  cent  if  the  establishment  is  lacking 
in  the  required  safety  provisions. 
Compensation  for  disability: 

(a)  Free  medical  and  surgical  treatment  during 

disability. 

(b)  Fifty  per  cent  of  daily  earnings,  including 

Sundays  and  holidays,  from  day  of  injury 
to  day  of  recovery  from  disability,  but  not 
over  one  year,  after  which  case  is  treated 
as  one  of  permanent  disability. 
'(c)  In  case  of  permanent  disability,  in  addition 
to  the  foregoing,  a  sum  equal  to  two  years' 
earnings  for  total  disability. 

Eighteen  months'  earnings  if  total  disability 
extends  only  to  former  trade. 

One  year's  earnings  in  cases  of  partial  perma- 
nent disability  for  usual  employment,  un- 
less the  employer  agrees  to  employ  injured 
workmen  at  some  other  work  at  old  rate 
of  wages. 

(d)  In  these  cases  the  daily  earnings  to  be  con- 

sidered as  not  less  than  1.50  pesetas  (29 
cents). 

(e)  Compensations    are    increased    by   50   per 

cent  if  the  establishment  is  lacking  in  the 
required  safety  provisions. 

Revision  of  compensation. — No  special  provision  is 
•  made  in  the  law. 

Insurance. — Employers  may  contract  with  author- 
ized insurance  companies  to  assume  obligations  im- 
posed by  law. 

Security  of  payment. — No  special  provision  is  made 
in  the  law. 

Settlement  of  disputes. — Disputes  concerning  com- 
pensation under  the  law  may  be  carried  to  special  perma- 


§  122     WORKMEN'S  COMPENSATION  AND  INSURANCE.     256 

nent  labor  tribunals  consisting  of  representatives  of  the 
State,  employers,  and  employes. 

§  122.  West  Australia  schedule  of  compensation 
and  scope  of  act. 

Date  of  enactment. — February  19,  1912,  in  effect  on 
a  date  fixed  by  the  governor  by  order  in  council. 

Injuries  compensated. — All  injuries  caused  to  a 
workman  arising  out  of  and  in  the  course  of  the  em- 
ployment causing  death  or  disability  for  at  least  two 
weeks,  except  when  due  to  serious  and  wilful  miscon- 
duct of  the  workman  injured. 

Industries  covered. — Railways,  waterworks,  tram- 
ways, electric-light  plants,  factories,  mines,  quarries, 
engineering  and  building  work,  and  employments  de- 
clared by  a  proclamation  of  the  governor,  issued  pur- 
suant to  addresses  from  both  houses  of  parliament,  to 
be  dangerous  or  injurious  to  health  or  dangerous  to  life 
or  limb. 

Persons  compensated. — All  persons  engaged  under 
contract  in  any  employment. 

Government  employes. — Act  applies  to  all  persons 
employed  under  the  Crown  to  whom  it  would  apply  if 
employer  were  a  private  person. 

Burden  of  payment. — Entire  cost  of  compensation 
rests  upon  employer. 

Compensation  for  death: 

(a)  A  sum  equal  to  three  years'  earnings,  but 

not  less  than  £200  ($973.30),  nor  more 
than  £400  ($1,946.60),  to  those  wholly  de- 
pendent upon  earnings  of  deceased. 

(b)  A  sum  less  than  above  amount  if  depend- 

ents were  partly  dependent  upon  deceased, 
to  be  agreed  upon  by  the  parties  or  fixed 
by  local  court. 

(c)  Reasonable  expenses  of  medical  attendance 


257  SUMMARY  OF  FOREIGN  LAWS.  §  122 

and  burial,  not  to  exceed  £200  ($485.65), 
if  deceased  leaves  no  dependents. 
Compensation  for  disability: 

(a)  A  weekly  payment  during  disability  after 

second  week,  not  exceeding  50  per  cent  of 
injured  person's  average  weekly  earnings 
during  the  previous  twelve  months,  such 
weekly  payment  not  to  exceed  £2  ($9.73) 
and  total  liability  not  to  exceed  £300 
($1,459.95). 

(b)  In  case  of  partial  disability,  regard  is  to  be 

had  to  the  difference  between  average 
weekly  earnings  before  and  after  the  acci- 
dent and  to  any  payment  other  than  wages 
made  by  employer  on  account  of  the  in- 
jury. 

(c)  A  lump  sum  may  be  substituted  for  weekly 

payments,  after  six  months,  on  the  appli- 
cation of  the  employer,  the  amount  to  be 
determined  by  the  court  in  default  of 
agreement. 

Revision  of  benefits. — Weekly  payments  may  be  re- 
vised by  the  court  at  request  of  either  party. 

Insurance. — Employers  may  contract  with  their  em- 
ployes for  substitution  of  a  scheme  of  compensation, 
benefit,  or  insurance  in  place  of  the  provisions  of  the 
act,  if  the  registrar  of  friendly  societies  certifies  that  the 
scheme  is  on  the  whole  not  less  favorable  to  the  general 
body  of  employes  and  their  dependents  than  the  provi- 
sions of  the  act.  In  such  case  employer  is  liable  only 
in  accordance  with  this  scheme. 

Security  of  payments. — When  an  employer  becomes 
liable  under  the  act  to  pay  compensation,  and  is  entitled 
to  any  sum  from  insurer  on  account  of  the  amount  due 
to  a  workman  under  such  liability,  then  in  the  event  of 
his  becoming  insolvent  such  workman  has  a  first  charge 
upon  this  sum  for  the  amount  so  due.  Compensation 

17— BOTDWO 


§  122    WORKMEN'S  COMPENSATION  AND  INSURANCE.     258 

for  injuries  sustained  in  the  course  of  employment  in  or 
about  a  mine,  factory,  building,  or  vessel  is  deemed  a 
charge  on  the  employer's  interest  in  such  property. 

Settlement  of  disputes. — Disputes  arising  under  the 
act  are  settled  by  the  local  court  of  the  district  in  which 
the  injury  is  received. 


CHAPTER  X. 


THE  WASHINGTON  WORKMEN'S   INSURANCE  ACT. 


Sec.  Sec. 

123.  The    nature   and    scope    of      140. 

the  Washington  industrial 
insurance  act. 

124.  The    workmen's    insurance      141. 

act  with  its  construction 
by  the  board. 

125.  Proposed  amendment. 

126.  Constitutionality  of  the  act 

127.  Opinion  of  the  court.  142. 

128.  Rules  and  directions. 

129.  Rules    and    directions    for 

employers.  143. 

130.  Rules    and    directions    for 

workmen. 

131.  Form  of  general  directions      144. 

to  employe's  to  be  posted 

on  all  floors  of  plant.  145. 

132.  Formal   procedure — List  of 

forms.  146. 

133.  Form   of   report   of   actual 

payroll,  (a)  147. 

134.  Form  of  contractor's  state- 

ment of  wages,  (b)  148. 

135.  Form  of  monthly  statement 

of  city,  (c)  149. 

136.  Form  of  notice  of  assess- 

ment, (d)  150. 

137.  Form   of   elective   adoption 

of  the  provisions  of  act.      151. 
(e) 

138.  Form   of  demand   for   first      152. 

quarterly      payment     re- 
quired by  act.  (f)  153. 

139.  Form  of  monthly  statement.      154. 

(g) 

259 


Alphabetical  list  of  indus- 
tries with  rates  and  classi- 
fication, (h) 

Form  of  instructions  to  cit- 
ies, counties,  school,  port, 
waterway,  drainage,  or 
other  municipal  corpora- 
tion. 

Form  of  letter  of  instruc- 
tions to  the  employers  and 
employes,  (j) 

Form  of  employer's  report 
of  accident  to  employe  with 
chart,  (k) 

Workmen's  claim  for  com- 
pensation. (1) 

Form  of  instructions  to  in- 
jured workman.  (1) 

Form  of  report  of  attending 
physician  with  charts,  (m) 

Form  of  surgical  discharge 
report,  (n) 

Form  of  report  of  witnesses. 
(o) 

Surgeon's  special  report 
with  charts,  (p) 

Form  of  proof  of  death  by 
physician,  (q) 

Form  of  proof  of  death  by 
undertaker,  (r) 

Form  of  dependent's  claim 
for  compensation,  (s) 

Affidavit  to  foregoing  form. 

Form  of  affidavit  of  claim- 
ant for  compensation — 


§123      WORKMEN'S  COMPENSATION  AND  INSURANCE.      260 

Sec.  Sec. 

Survivors  of      deceased  160.  Form    of    burial     expense 

workmen,  (t)                                        voucher — Account    of    de- 

155.  Form     of  summary     and                ceased  workman,   (x) 

award,   (u)  161.  Form    of    final    settlement 

156.  Form    of    partial    payment  voucher,  (y) 

voucher — Permanent  par-  162.  Form  of  election  to  receive 
tial  disability — Full  pay-  compensation  and  assign- 
ment— Total  temporary  ment  of  claim — Injuries 
disability — Partial  pay-  by  defaulting  employer, 
ment.  (v)  (z) 

157.  Form    of    partial    payment  163.  Election    to    receive    corn- 

voucher — Total  temporary  pensation  and  assignment 

disability — Monthly        al-  of  claim — Injury  by  other 

lowance.   (w)  than  employer,  (zz) 

158.  Form  of  pension  voucher —  164.  Statistical  reports    on    the 

Permanent    total    disabil-  operation  of  the  act. 

ity.  (w)  165.  Review    of    the  first  eight 

159.  Form  of  pension  voucher —  months'  operation  of  act. 

Survivors  of  deceased  166.  Official  state  safety  bulle- 
workman.  (ww)  tin. 

§  123.  The  nature  and  scope  of  the  Washing- 
ton industrial  insurance  act. — The  Washington  Act  cov- 
ers all  employers  and  employes  of  forty-eight  extra  haz- 
ardous employments  which  are  specified  in  the  act,  and 
the  act  is  compulsory  in  form  as  to  all  such  employers 
and  employes.  All  civil  actions  and  civil  causes  of  ac- 
tions for  personal  injuries  and  all  jurisdictions  of  the 
courts  of  the  State  over  causes  of  action  arising  in  said 
employments  are  abolished.  This  act,  which  is  an  ex- 
ample of  progressive  legislation  along  these  lines,  is  set 
out  in  full  in  the  following  section,  together  with  the 
Notes  of  Construction  under  each  section  of  the  same 
drafted  by  the  commissioners.  Since  the  constitution- 
ality of  the  act  has  been  sustained  by  the  Supreme  Court 
of  the  State  (see  section  127)  these  notes  have  the  same 
binding  effect  upon  all  persons  affected  by  the  statute 
as  the  statute  itself  until  overruled  by  the  courts. 

§  124.  The  workmen's  insurance  act  with  its 
construction  by  the  board. 

Sec.    1.     Declaration    of    police    power. — The    com- 


26 1  WASHINGTON  ACT.  §  124 

mon-law  system  governing  the  remedy  of  workmen 
against  employers  for  injuries  received  in  hazardous 
work  is  inconsistent  with  modern  industrial  conditions. 
In  practice  it  proves  to  be  economically  unwise  and  un- 
fair. Its  administration  has  produced  the  result  that 
little  of  the  cost  of  the  employer  has  reached  the  work- 
man and  that  little  only  at  large  expense  to  the  public. 
The  remedy  of  the  workman  has  been  uncertain,  slow 
and  inadequate.  Injuries  in  such  works,  formerly  occa- 
sional, have  become  frequent  and  inevitable.  The  wel- 
fare of  the  State  depends  upon  its  industries,  and  even 
more  upon  the  welfare  of  its  wageworker.  The  State 
of  Washington,  therefore,  exercising  herein  its  police 
and  sovereign  power,  declares  that  all  phases  of  the 
premises  are  withdrawn  from  private  controversy,  and 
sure  and  certain  relief  for  workmen,  injured  in  extra 
hazardous  work,  and  their  families  and  dependents,  is 
hereby  provided  regardless  of  questions  of  fault  and  to 
the  exclusion  of  every  other  remedy,  proceeding  or  com- 
pensation, except  as  otherwise  provided  in  this  act;  and 
to  that  end  all  civil  actions  and  civil  causes  of  action  for 
such  personal  injuries  and  all  jurisdiction  of  the  courts 
of  the  State  over  such  causes  are  hereby  abolished,  ex- 
cept as  in  this  act  provided. 

Note  by  board. — The  abolishing  of  jurisdiction  of  courts  over 
personal  injury  claims  applies  only  to  those  in  the  relation  of 
employer  and  employe"  in  "extra  hazardous"  occupations.  Employe's 
as  members  of  the  public  have  their  rights  against  third  persons  as 
heretofore.  Suits  allowed  against  employer,  see  Sec.  8.  Even 
though  the  injury  or  death  be  caused  by  the  tort  of  a  third  person, 
the  employ^  may  obtain  compensation  by  election  and  assignment, 
except  where  a  wilful  act  of  such  other,  committed  against  the 
employg,  be  for  reasons  personal  and  not  because  of  his  employ- 
ment. 

Sec.  2.  Enumeration  of  extra  hazardous  works.— 
There  is  a  hazard  in  all  employment,  but  certain  em- 
ployments have  come  to  be,  and  to  be  recognized  as  be- 
ing inherently  constantly  dangerous.  This  act  is  in- 


§124      WORKMEN'S  COMPENSATION  AND  INSURANCE.      262 

tended  to  apply  to  all  such  inherently  hazardous  works 
and  occupations,  and  it  is  the  purpose  to  embrace  all  of 
them,  which  are  within  the  legislative  jurisdiction  of 
the  State,  in  the  following  enumeration,  and  they  are 
intended  to  be  embraced  within  the  term  "extra  hazard- 
ous" wherever  used  in  this  act,  to-wit: 

Factories,  mills  and  workshops  where  machinery  is 
used;  printing,  electrotyping,  photo-engraving  and  ster- 
eotyping plants  where  machinery  is  used;  foundries, 
blast  furnaces,  mines,  wells,  gas  works,  waterworks,  re- 
duction works,  breweries,  elevators,  wharves,  docks, 
dredges,  smelters,  powder  works;  laundries  operated  by 
power;  quarries;  engineering  works;  logging,  lumber- 
ing and  ship  building  operations;  logging,  street  and 
interurban  railroads;  buildings  being  constructed,  re- 
paired, moved  or  demolished;  telegraph,  telephone,  elec- 
tric light  or  power  plants  or  lines,  steam  heating  or 
power  plants,  steamboats,  tugs,  ferries  and  railroads. 
If  there  be  or  arise  any  extra  hazardous  occupation  or 
work  other  than  those  hereinabove  enumerated,  it  shall 
come  under  this  act,  and  its  rate  of  contribution  to  the 
accident  fund  hereinafter  established,  shall  be,  until  fixed 
by  legislation,  determined  by  the  department  herein- 
after created,  upon  the  basis  of  the  relation  which  the 
risk  involved  bears  to  the  risks  classified  in  section  4. 

Note  by  Board. — Admiralty  Jurisdiction,  see  Sec.  18. 
Unlisted  extra  hazardous  occupations  will  be  included  in  existing 
classes  whenever  possible.     Obviously,  accidents  in  new  and  small 
classes  might  bankrupt  employers  included  therein.     Non-hazard- 
ous elective,  Class  48. 

Sec.  3.  Definitions. — In  the  sense  of  this  act  words 
employed  mean  as  here  stated,  to-wit: 

Factories  mean  undertakings  in  which  the  business 
of  working  at  commodities  is  carried  on  with  power- 
driven  machinery,  either  in  manufacture,  repair  or 
change,  and  shall  include  the  premises,  yard  and  plant 
of  the  concern. 


263  WASHINGTON  ACT.  §  124 

Workshop  means  any  plant,  yard,  premises,  room  or 
place  wherein  power-driven  machinery  is  employed  and 
manual  labor  is  exercised  by  way  of  trade  for  gain  or 
otherwise  in  or  incidental  to  the  process  of  making,  al- 
tering, repairing,  printing  or  ornamenting,  finishing 
or  adapting  for  sale  or  otherwise  any  article  or  part  of 
article,  machine  or  thing,  over  which  premises,  room  or 
place  the  employer  of  the  person  working  therein  has 
the  right  of  access  or  control. 

Mill  means  any  plant,  premises,  room  or  place  where 
machinery  is  used,  any  process  of  machinery,  changing, 
altering  or  repairing  any  article  or  commodity  for  sale 
or  otherwise,  together  with  the  yards  and  premises 
which  are  a  part  of  the  plant,  including  elevators,  ware- 
houses and  bunkers. 

Mine  means  any  mine  where  coal,  clay,  ore,  mineral, 
gypsum  or  rock  is  dug  or  mined  underground. 

Quarry  means  an  open  cut  from  which  coal  is  mined, 
or  clay,  ore,  mineral,  gypsum,  sand,  gravel  or  rock  is  cut 
or  taken  for  manufacturing,  building  or  construction 
purposes. 

Engineering  work  means  any  work  of  construction, 
improvement  or  alteration  or  repair  of  buildings,  struc- 
tures, streets,  highways,  sewers,  street  railways,  rail- 
roads, logging  roads,  interurban  railroads,  harbors, 
docks,  canals;  electric,  steam  or  water  power  plants; 
telegraph  and  telephone  plants  and  lines;  electric  light 
or  power  lines,  and  includes  any  other  works  for  the 
construction,  alteration  or  repair  of  which  machinery 
driven  by  mechanical  power  is  used. 

Except  when  otherwise  expressly  stated,  employer 
means  any  person,  body  of  persons,  corporate  or  other- 
wise, and  the  legal  personal  representatives  of  a  de- 
ceased employer,  all  while  engaged  in  this  State  in  any 
extra  hazardous  work. 

Note   by    board.— Employer   includes   owner,   contractor,    sub- 


§124      WORKMEN'S  COMPENSATION  AND  INSURANCE.      264 

contractor,  agent,  municipality,  see  Sec.  17.    Residence  outside  the 
State  immaterial. 

This  act  has  no  application  where  the  United  States  is  the 
employer.  (Opinion  Attorney  General,  Sept.  20,  1911.) 

Workman  means  every  person  in  this  State,  who, 
after  September  30,  1911,  is  engaged  in  the  employment 
of  an  employer  carrying  on  or  conducting  any  of  the 
industries  scheduled  or  classified  in  section  4,  whether 
by  way  of  manual  labor  or  otherwise,  and  whether  upon 
the  premises  or  at  the  plant  or,  he  being  in  the  course 
of  his  employment,  away  from  the  plant  of  his  em- 
ployer: Provided,  however,  That  if  the  injury  to  a 
workman  occurring  away  from  the  plant  of  his  em- 
ployer is  due  to  the  negligence  or  wrong  of  another  not 
in  the  same  employ,  the  injured  workman,  or  if  death 
result  from  the  injury,  his  widow,  children,  or  depend- 
ents, as  the  case  may  be,  shall  elect  whether  to  take 
under  this  act  or  seek  a  remedy  against  such  other,  such 
election  to  be  in  advance  of  any  suit  under  this  section; 
and  if  he  take  under  this  act,  the  cause  of  action  against 
such  other  shall  be  assigned  to  the  State  for  the  benefit 
of  the  accident  fund;  if  the  other  choice  is  made,  the  ac- 
cident fund  shall  contribute  only  the  deficiency,  if  any, 
between  the  amount  of  recovery  against  such  third  per- 
son actually  collected,  and  the  compensation  provided 
or  estimated  by  this  act  for  such  case.  Any  such  cause 
of  action  assigned  to  the  State  may  be  prosecuted,  or 
compromised  by  the  department,  in  its  discretion.  Any 
compromise  by  the  workman  of  any  such  suit,  which 
would  leave  a  deficiency  to  be  made  good  out  of  the 
accident  fund,  may  be  made  only  with  the  written  ap- 
proval of  the  department. 

Note  by  board. — Not  in  course  of  employment:  Employer 
injured  going  to  supper  down  log  chute;  employs  left  moving  work 
train  to  enter  saloon,  injured  attempting  to  regain  train  with 
bottles  of  beer;  telephone  lineman  falling  on  wet  steps  going  to 
lunch. 


265  WASHINGTON  ACT.  §  124 

Any  individual  employer  or  any  member  or  officer 
of  any  corporate  employer  who  shall  be  carried  upon  the 
payroll  at  a  salary  or  wage  not  less  than  the  average 
salary  or  wage  named  in  such  payroll  and  who  shall  be 
injured,  shall  be  entitled  to  the  benefit  of  this  act  as  and 
under  the  same  circumstances  as  and  subject  to  the 
same  obligations  as  a  workman. 

Note  by  board. — Such  person,  including  partners  and  stock- 
holders, may  elect  to  come  under  the  act. 

Dependent  means  any  of  the  following  named  rela- 
tives of  a  workman  whose  death  results  from  any  injury 
and  who  leaves  surviving  no  widow,  widower,  or  child 
under  the  age  of  sixteen  years,  viz. :  invalid  child  over 
the  age  of  sixteen  years,  daughter,  between  sixteen  and 
eighteen  years  of  age,  father,  mother,  grandfather, 
grandmother,  step-father,  step-mother,  grandson,  grand- 
daughter, step-son,  step-daughter,  brother,  sister,  half- 
sister,  half-brother,  niece,  nephew,  who,  at  the  time  of 
the  accident,  are  dependent,  in  whole  or  in  part,  for  their 
support  upon  the  earnings  of  the  workman.  Except 
where  otherwise  provided  by  treaty,  aliens,  other  than 
father  or  mother,  not  residing  within  the  United  States 
at  the  time  of  the  accident,  are  not  included. 

Beneficiary  means  a  husband,  wife,  child  or  depend- 
ent of  a  workman,  in  whom  shall  vest  a  right  to  receive 
payment  under  this  act. 

Invalid:  means  one  who  is  physically  or  mentally  in- 
capacitated from  earning. 

The  word  "child,"  as  used  in  this  act,  includes  a  post- 
humous child,  a  child  legally  adopted  prior  to  the  injury, 
and  an  illegitimate  child  legitimated  prior  to  the  injury. 

Note  by  board. — Includes  a  step-child. 

The  words  injury  or  injured,  as  used  in  this  act,  re- 
fer only  to  an  injury  resulting  from  some  fortuitous 
event  as  distinguished  from  the  contraction  of  disease. 

Note  by  board. — Recent  medical   texts  indicating  that  hernia 


§124      WORKMEN'S  COMPENSATION  AND  INSURANCE.      266 

(rupture)  ordinarily  develops  gradually,  rarely  as  a  result  of 
accident,  the  department  rules  that  a  workman  in  order  to  be 
entitled  to  indemnity  for  hernia  must  clearly  prove: 

(1)  The  hernia  is  of  recent  origin; 

(2)  It  must  have  been  accompanied  by  pain; 

(3)  It  must  have  been  immediately  preceded  by  some  acci- 
dental strain  in  the  course  of  hazardous  employment; 

(4)  There  must  be  conclusive  proof  that  it  did  not  exist  prior 
to  the  date  of  the  alleged  injury. 

In  case  the  individual  elects  to  be  operated  on,  the  above  facts 
being  established,  one  month  total  disability  only  will  be  allowed 
for  recovery  with  compensation  not  to  exceed  60%  of  wages  in 
addition  to  the  scale  lump  sum. 

In  case  he  does  not  elect  to  be  operated  upon,  and  the  hernia 
becomes  strangulated  in  the  future,  the  results  from  said  strangu- 
lation will  not  be  indemnified. 

Sec.  4.  Schedule  of  contribution. — Insomuch  as  in- 
dustry should  bear  the  greater  portion  of  the  burden  of 
the  cost  of  its  accidents,  each  employer  shall,  prior  to 
January  15th  of  each  year,  pay  into  the  State  treasury, 
in  accordance  with  the  following  schedule,  a  sum  equal 
to  a  percentage  of  his  total  payroll  for  that  year,*  to- 
wit:  (the  same  being  deemed  the  most  accurate  method 
of  equitable  distribution  of  burden  in  proportion  to  rela- 
tive hazard) : 

Construction  Work. 

Tunnels;  bridges;  trestles;  sub-aqueous  works;  ditches 
and  canals  (other  than  irrigation  without  blasting) ; 
dock  excavation;  fire  escapes;  sewers;  house  moving; 
house  wrecking  .065 

Iron,  or  steel  frame  structures  or  parts  of  structures .080 

Electric  light  or  power  plants  or  systems;  telegraph  or 

telephone  systems;  pile  driving;  steam  railroads .050 

Steeples,  towers  or  grain  elevators,  not  metal  framed;  dry- 
docks  without  excavation;  jetties;  breakwaters;  chim- 
neys; marine  railways;  water-works  or  systems;  electric 
railways  with  rock  work  or  blasting;  blasting;  erecting 
fireproof  doors  or  shutters .050 

Steam  heating  plants;  tanks,  water  towers  or  windmills, 

not  metal  frames . .040 

Shaft  sinking .060 

*Act  amended  before  passage  requiring  payment  each  month 
after  Dec.  31,  1911,  if  funds  on  hand  are  deemed  insufficient. 


267  WASHINGTON  ACT.  §  124 

Concrete  buildings;  freight  or  passenger  elevators;  fire- 
proofing  of  buildings;  galvanized  iron  or  tin  works;  gas 
works,  or  systems;  marble,  stone  or  brick  work;  road 
making  with  blasting;  roof  work;  safe  moving;  slate 
work;  outside  plumbing  work;  metal  smokestacks  or 

chimneys    .050 

Excavations  not  otherwise  specified;    blast  furnaces .040 

Street  or  other  grading;  cable  or  electric  street  railways 
without  blasting;  advertising  signs;  ornamental  metal 

work  in   buildings .035 

Ship  or  boat  building  or  wrecking  with  scaffolds;    floating 

docks     _. .045 

Carpenter  work  not  otherwise  specified .035 

Installation  of  steam  boilers  or  engines;  placing  wire  in. 
conduits;  installing  dynamos;  putting  up  belts  for  ma- 
chinery; marble,  stone  or  tile  setting,  inside  work;  man- 
tel setting;  metal  ceiling  work;  mill  or  ship  wrighting; 
painting  of  buildings  or  structures;  installation  of  auto- 
matic sprinklers;  ship  or  boat  rigging;  concrete  laying 
in  floors,  foundations  or  street  paving;  asphalt  laying; 
covering  steam  pipes  or  boilers;  installation  of  machin- 
ery not  otherwise  specified .030 

Drilling  wells;  installing  electrical  apparatus  or  fire  alarm 
systems  in  buildings;  house  heating  or  ventilating  sys- 
tems; glass  setting;  building  hot  houses;  lathing;  paper 
hanging;  plastering;  inside  plumbing;  wooden  stair  build- 
ing; road  making .020 

The  absence  of  power  driven  machinery  does  not  exempt  occu- 
pations named  in  this  subdivision,  nor  the  small  number  of 
employ6s  engaged,  nor  the  short  time  required  to  accomplish  the 
work. 

Operation  (including  repair  work)  of 

(All  combinations  of  material  take  the  higher  rate  when  not 

otherwise  provided.) 

Logging  railroads;  railroads;  dredges;  interurban  electric 

railroads  using  third  rail  system;  dry  or  floating  docks  .050 

Electric  light  or  power  plants;  interurban  electric  railroads 

not  using  third  rail  system;  quarries .040 

Street  railways,  all  employes;  telegraph  or  telephone  sys- 
tems; stone  crushing;  blasting  furnaces;  smelters;  coal 
mines;  gas  works;  steamboats;  tugs;  ferries .030 

Mines,  other  than  coal;    steam  heating  or  power  plants .025 

Grain  elevators;  laundries;  waterworks;  paper  or  pulp 

mills;  garbage  works -020 


§124      WORKMEN'S  COMPENSATION  AND  INSURANCE.      268 
Factories  Using  Power-Driven  Machinery. 

Stamping  tin  or  metal .045 

Bridge  work ;  railroad  car  or  locomotive  making  or  repair- 
ing; cooperage;  logging  with  or  without  machinery; 
saw  mills;  shingle  mills;  staves;  veneer;  box;  lath; 
packing  cases;  sash,  door  or  blinds;  barrel,  keg;  pail; 
basket;  tub;  wooden  ware  or  wooden  fibre  ware;  rolling 
mills;  making  steam  shovels  or  dredges;  tanks;  water 
towers;  asphalt;  building  material  not  otherwise  speci- 
fied; fertilizer;  cement;  stone  with  or  without  machin- 
ery; kindling  wood;  masts  and  spars  with  or  without 
Machinery;  canneries,  metal  stamping  extra;  creosot- 
ing  works;  pile  treating  works .025 

Excelsior,  iron,  steel,  copper,  zinc,  brass  or  lead  articles  or 
wares  not  otherwise  specified;  working  in  wood  not 
otherwise  specified;  hardware;  tile;  brick;  terra  cotta; 
fire  clay;  pottery;  earthenware;  porcelain  ware;  peat 
fuel;  brickettes  .020 

Breweries;  bottling  works;  boiler  works;  foundries;  ma- 
chine shops  not  otherwise  specified .020 

Cordage;  working  in  food  stuffs,  including  oils,  fruits  and 
vegetables;  working  in  wool,  cloth,  leather,  paper, 
broom,  brush,  rubber  or  textiles  not  otherwise  specified —  .015 

Making  jewelry,  soap,  tallow,  lard,  grease,  condensed  milk__      .015 

Creameries;  printing;  electrotyping;  photo-engraving;  en- 
graving; lithographing .015 

Miscellaneous   Work. 

Stevedoring;     longshoring    .030 

Operating    stock    yards,    with    or    without    railroad    entry; 

packing   houses    .025 

Wharf  operation;  artificial  ice,  refrigerating  or  cold  storage 
plants;  tanneries;  electric  systems  not  otherwise  speci- 
fied    .020 

Theater   stage    employe's .015 

Fire    works    manufacturing .050 

Powder    works    .100 

The  application  of  this  act  as  between  employers  and 
workmen  shall  date  from  and  include  the  first  day  of 
October,  1911.  The  payment  for  1911  shall  be  made 
prior  to  the  day  last  named,  and  shall  be  preliminarily 
collected  upon  the  payroll  of  the  last  preceding  three 
months  of  operation.  At  the  end  of  each  year  an  ad- 
justment of  accounts  shall  be  made  upon  the  basis  of  the 


269  WASHINGTON  ACT.  §  124 

actual  payroll.  Any  shortage  shall  be  made  good  on  or 
before  February  1st,  following.  Every  employer  who 
shall  enter  into  business  at  any  intermediate  day  shall 
make  his  payment  for  the  initial  year  or  portion  thereof 
before  commencing  operation;  its  amount  shall  be  cal- 
culated upon  his  estimated  payroll,  an  adjustment  shall 
be  made  on  or  before  February  1st  of  the  following  year 
in  the  manner  above  provided. 

Note  by  board. — Preliminary  payment  on  an  estimated  payroll 
required  of  new  establishments,  thereafter  as  assessed. 

An  establishment  or  business  permanently  dismantled  or  aban- 
doned does  not  forfeit  its  "unearned  premiums,"  but  is  entitled  to  a 
return  of  the  excess  payment  by  warrant  against  the  Accident 
Fund.  (Opinion  Attorney  General,  Jan.  9,  1912.) 

For  the  purpose  of  such  payments  accounts  shall  be 
kept  with  each  industry  in  accordance  with  the  classi- 
fication herein  provided  and  no  class  shall  be  liable  for 
the  depletion  of  the  accident  fund  from  accidents  hap- 
pening in  any  other  class.  Each  class  shall  meet  and  be 
liable  for  the  accidents  occurring  in  such  class.  There 
shall  be  collected  from  each  class  as  an  initial  payment 
into  the  accident  fund  as  above  specified  on  or  before 
the  1st  day  of  October,  1911,  one-fourth  of  the  premium 
of  the  next  succeeding  year,  and  one-twelfth  thereof  at 
the  close  of  each  month  after  December,  1911:  Pro- 
vided, Any  class  having  sufficient  funds  credited  to  its 
account  at  the  end  of  the  first  three  months  or  any 
month  thereafter,  to  meet  the  requirements  of  the  acci- 
dent fund,  that  class  shall  not  be  called  upon  for  such 
month.  In  case  of  accidents  occurring  in  such  class 
after  lapsed  payment  or  payments,  said  class  shall  pay 
the  said  lapsed  or  deferred  payments  commencing  at 
the  first  lapsed  payment,  as  may  be  necessary  to  meet 
such  requirements  of  the  accident  fund. 

Note  by  board. — The  provision  for  non-assessment  of  premium 
does  not  seem  equitably  to  apply  to  owners  and  contractors  in 
construction  work  (Classes  1  to  9,  inclusive).  Continuous  monthly 
contribution  is  required  to  place  operators  in  such  work  on  the 


§  124     WORKMEN'S  COMPENSATION  AND  INSURANCE.      270 

same  competitive  plane  as  to  bidding,  advance  ordering  of  material, 
etc.,  each  contract  thus  providing  for  its  average  quota  of  injuries. 
The  intent  of  the  law  is  that  each  of  the  forty-seven  funds  be 
automatic  and  self-adjusting.  The  rate  is  fixed;  time  of  payment 
varies  with  the  need.  The  actual  premium  (percentage  of  payroll) 
cannot  be  determined  in  advance.  The  proviso  here  was  inserted 
as  an  amendment  to  the  original  bill;  the  first  paragraph  of  Sec.  4, 
so  far  as  inconsistent,  to  be  disregarded. 

The  fund  thereby  created  shall  be  termed  the  "ac- 
cident fund"  which  shall  be  devoted  exclusively  to  the 
purpose  specified  for  it  in  this  act. 

In  that  the  intent  is  that  the  fund  created  under  this 
section  shall  ultimately  become  neither  more  nor  less 
than  self-supporting,  exclusive  of  the  expense  of  admin- 
istration, the  rates  in  this  section  named  are  subject  to 
future  adjustment  by  the  legislature,  and  the  classifica- 
tions to  rearrangement  following  any  relative  increase 
or  decrease  of  hazard  shown  by  experience. 

It  shall  be  unlawful  for  the  employer  to  deduct  or 
obtain  any  part  of  the  premium  required  by  this  section 
to  be  by  him  paid  from  the  wages  or  earnings  of  his 
workmen  or  any  of  them,  and  the  making  or  attempt 
to  make  any  such  deduction  shall  be  a  gross  misde- 
meanor.* If,  after  this  act  shall  have  come  into  opera- 
tion, it  is  shown  by  experience  under  the  act,  because 
of  poor  or  careless  management,  any  establishment  or 
work  is  unduly  dangerous  in  comparison  with  other  like 
establishments  or  works,  the  department  may  advance 
its  classification  of  risks  and  premium  rates  in  propor- 
tion to  the  undue  hazard.  In  accordance  with  the  same 
principle,  any  such  increase  in  classification  or  premium 
rate,  shall  be  subject  to  restoration  to  the  schedule  rate. 
Any  such  change  in  classification  of  risks  or  premium 
rates,  or  any  change  caused  by  change  in  the  class  of 

*Gross  misdemeanor — penalty,  imprisonment  in  county  jail  not 
more  than  one  year,  or  by  a  fine  not  to  exceed  one  thousand  dollars 
or  both.  Rem.  and  Bal.  Code,  Sec.  2267;  Sec.  15,  Chap.  249,  Laws 
1909.  The  workman  contributes  nothing  under  this  act;  see  Sec. 
24. 


WASHINGTON  ACT.  §  124 

work,  occurring  during  the  year  shall,  at  the  time  of  the 
annual  adjustment,  be  adjusted  by  the  department  in 
proportion  to  its  duration  in  accordance  with  the  sched- 
ule of  this  section.  If,  at  the  end  of  any  year,  it  shall 
be  seen  that  the  contribution  to  the  accident  fund  by 
any  class  of  industry  shall  be  less  than  the  drain  upon 
the  fund  on  account  of  that  class,  the  deficiency  shall  be 
made  good  to  the  fund  on  the  1st  day  of  February  of 
the  following  year  by  the  employers  of  that  class  in  pro- 
portion to  their  respective  payments  for  the  past  year. 

Note  by  board. — Contribution  by  employe's  to  a  Hospital  Fund 
of  an  establishment  not  prohibited  by  this  section;  such  funds  to 
provide  resident  physician  in  remote  camps,  and  procure  first  aid 
and  competent  care  in  sickness  and  injury.  See  Sees.  12,  13,  24. 

For  the  purposes  of  such  payment  and  making  good 
of  deficit  the  particular  classes  of  industry  shall  be  as 
follows : 

Construction  Work. 

Class  1.  Tunnels;  sewer;  shaft  sinking;  drilling 
wells. 

Note  by  board. — Includes  all  underground  work  of  whatever 
character  in  connection  with  sewer  construction,  includes  tunnel- 
ing and  shafting  and  work  at  the  entrances  thereof;  also  such 
work  in  open  trenches  exceeding  six  feet  in  depth,  but  not  "excava- 
tions" as  hereinafter  defined. 

"Excavations,"  rate  4  per  cent. :  Ditches  less  than  six  feet  deep ; 
where  deeper  than  six  feet,  width  must  exceed  half  of  depth. 

Class  2.  Bridges;  mill  wrighting;  trestles;  steeples, 
towers  or  grain  elevators  not  metal  framed;  tanks; 
water  towers,  windmills  not  metal  framed. 

Includes  assembling  of  parts  and  erection;  excludes  fabrica- 
tion, manufacture.  See  Class  27. 

Class  3.  Sub-aqueous  works ;  canal  other  than  irri- 
gation or  docks  with  or  without  blasting;  pile  driving; 
jetties;  breakwaters;  marine  railways. 

Includes  dock  excavations,  6%  per  cent.  Ditches  and  canals, 
other  than  irrigation  without  blasting,  rate  6%  per  cent,  where 
deeper  than  six  feet  and  in  width  less  than  half  of  depth. 


§124      WORKMEN'S  COMPENSATION  AND  INSURANCE.      272 

Class  4.  House  moving;  house  wrecking;  safe 
moving. 

Excludes  ordinary  operations  of  drayage  and  transfer  com- 
panies. 

Includes  moving  boilers,  heavy  machinery,  etc.,  5  per  cent. 

Class  5.  Iron  or  steel  frame  structures  or  parts  of 
structures;  fire  escapes;  erecting  fireproof  doors  or  shut- 
ters; blast  furnaces;  concrete  chimneys;  freight  or  pas- 
senger elevators;  fireproofing  of  buildings;  galvanized 
iron  or  tin  work;  marble,  stone  or  brick  work;  roof 
work;  slate  work;  plumbing  work;  metal  smokestacks 
or  chimneys;  advertising  signs;  ornamental  metal  work 
in  buildings;  carpenter  work  not  otherwise  specified; 
marble,  stone  or  tile  setting;  mantel  setting;  metal 
ceiling  work;  painting  of  buildings  or  structures;  con- 
crete laying  in  floors  or  foundations;  glass  setting;  build- 
ing hot  houses;  lathing;  paper  hanging;  plastering; 
wooden  stair  building. 

Includes  building  metal,  concrete  or  brick  chimneys,  5  per 
cent.;  construction  of  concrete  buildings  and  tearing  forms  from 
walls,  5  per  cent.;  outside  plumbing,  rate  5  per  cent.,  includes 
"roughing  in,"  and  side  sewer  work,  except  where  underground; 
inside  plumbing,  2  per  cent.,  includes  installation  of  bath  tubs,  etc. 

Excludes  iron  or  steel  bridge  construction  (Class  2),  6y2  per 
cent. 

Class  6.  Electric  light  and  power  plants  or  sys- 
tems, telegraph  or  telephone  systems;  cable  or  electric 
railways  with  or  without  rock  work  or  blasting;  water- 
works or  systems;  steam  heating  plants;  gas  works  or 
systems;  installation  of  steam  boilers  or  engines;  placing 
wires  in  conduits;  installing  dynamos;  putting  up  belts 
for  machinery;  installation  of  automatic  sprinklers; 
covering  steam  pipes  or  boilers;  installation  of  machin- 
ery not  otherwise  specified;  installing  electrical  appara- 
tus or  fire  alarm  systems  in  buildings;  house  heating  or 
ventilating  systems. 

Note  by  board. — Includes  placing  wire  in  conduit,  at  3  per 
cent;  blasting,  5  per  cent;  clearing  land  with  blasting,  5  per 


273  WASHINGTON  ACT.  §  124 

cent.;    installing  furnaces  in  residences,  etc.,  2  per  cent.;    installa- 
tion of  machinery  includes  foundations  for  same. 

Class  7.     Steam  railroads;  logging  railroads. 

Note  by  board. — Includes  operation  of  logging  and  other  steam 
railroads,  5  per  cent. 

Class  8.  Road-making;  street  or  other  grading; 
concrete  laying  in  street  paving;  asphalt  laying. 

Note  by  board. — Includes  road-making  with  blasting,  5  per 
cent.;  concrete  sidewalk  laying,  3  per  cent.;  plank  road,  street  or 
sidewalk  construction  or  repair,  2  per  cent.;  new  road  grading 
including  clearing  (without  blasting),  2  per  cent.;  brick  or  block 
paving  and  repair,  2  per  cent. 

Excludes  maintenance  of  dirt  roads  without  scrapers  or  ma- 
chines. 

Class  9.  Ship  or  boat  building  with  scaffolds;  ship 
wrighting;  ship  or  boat  rigging;  floating  docks. 

Note  by  board. — Includes  construction  of  drydocks  without 
excavation,  5  per  cent. 

Operation  (Including  Repair  Work)  Of 

Class  10.  Logging;  saw  mills;  shingle  mills;  lath 
mills;  masts  and  spars  with  or  without  machinery. 

Note  by  board. — Includes  pilers,  manual  laborers  and  planers 
on  sawmill  premises,  and  teamsters;  stump-pulling  with  donkey 
engines,  2y2  per  cent.;  booming  logs  or  driving  ties,  2y2  per  cent. 

Excludes  retail  lumber  yards  operating  without  machinery. 

"Class  11"  omitted  by  the  legislature. 

Class  12.     Dredges;  dry  or  floating  docks. 

Class  13.  Electric  light  or  power  plants  or  sys- 
tems; steam  heat  or  power  plants  or  systems;  electric 
systems  not  otherwise  specified. 

Note  by  board. — Excludes  elevators  and  individual  steam  heat- 
ing plants  in  office  buildings,  hotels,  apartment  houses,  residences, 
retail  and  wholesale  stores.  (Opinion  Attorney  General,  Sept.  8, 
1911.) 

Class  14.     Street  railways. 

Note   by   board. — Includes   interurban   electric   railroads,   with 
third  rail,  5  per  cent.;   without  third  rail,  4  per  cent. 
18— BOTDWC 


§.124      WORKMEN'S  COMPENSATION  AND  INSURANCE.      '274 
Class  15.     Telegraph  systems ;  telephone  systems. 

Note  by  board. — Includes  line  and  repair  work. 
Excludes  telephone  and  telegraph  operators. 

Class  16.     Coal  mines. 

Note  by  board. — Excludes  office  force  only. 

Class  17.  Quarries;  stone  crushing;  mines  other 
than  coal. 

Note  by  board. — Excludes  teamsters  hauling  gravel  not  sub- 
jected to  cave-in  hazard  or  in  contact  with  machinery. 

Class  18.     Blast  furnaces';  smelters;  rolling  mills. 

Class  19.     Gas  works. 

Class  20.     Steamboats;  tugs;  ferries. 

Note  by  board. — Admiralty  Jurisdiction.    See  Sec.  18,  note. 
Class  21.     Grain  elevators. 

Note  by  board* — Includes  flouring  mills,  2  per  cent.;  grain 
warehouses,  chop  and  feed  mills,  2  per  cent. 

Excludes  threshing  machine  and  hay  haling  outfits;  merchan- 
dise warehouses  without  machinery. 

Class  22.     Laundries. 

Note  by  board. — Excludes  office  force  and  drivers  only. 

Class  23.     Water  works. 
Class  24.     Paper  or  pulp  mills. 
Class  25.     Garbage  works;  fertilizer. 

Factories  (Using  Power-Driven  Machinery). 

Class  26.     Stamping  tin  or  metal. 

Class  27.  Bridge  work;  making  steam  shovels  or 
dredges;  tanks;  water  towers. 

Class  28.  Railroad  car  or  locomotive  making  or  re- 
pairing. 

Class  29.  Cooperage;  staves;  veneer;  box;  packing 
cases;  sash,  door  or  blinds;  barrel;  keg;  pail;  basket; 
tub ;  wood  ware  or  wood  fibre  ware ;  kindling  wood ; 
excelsior;  working  in  wood  not  otherwise  specified. 


275  WASHINGTON  ACT.  §  124 

Note  by  board. — Includes  planers,  if  independently  operated, 
2%  per  cent. 

Excludes  teamsters  in  fuel  yards  not  working  around  machines. 

Class  30.     Asphalt. 

Class  31.  Cement;  stone  with  or  without  machin- 
ery; building  material  not  otherwise  specified. 

Note  by  board. — Includes  operation  of  gravel  bunkers  and 
gravel  haulers,  lime  burning,  cutting  paving  blocks,  rate  2%  per 
cent. 

Class  32.     Canneries  of  fruits  or  vegetables. 
Class  33.     Canneries  of  fish  or  meat  products. 

Note  by  board. — Includes  manufacturing  dogfish  oil,  2%  per 
cent.;  contract  work  with  third  parties  for  pack  at  flat  rate  per 
case,  Oriental  or  white  labor,  factory  owner  ruled  primarily 
responsible. 

Class  34.  Iron,  steel,  copper,  zinc,  brass  or  lead 
articles  or  wares;  hardware;  boiler  works;  foundries; 
machine  shops  not  otherwise  specified. 

Note  by  board. — Includes  beveling  glass,  rate  2%  per  cent. 

Class  35.  Tile;  brick;  terra  cotta;  fire  clay;  pot- 
tery; earthenware;  porcelain  ware. 

Note  by  board. — Includes  manufacture  glass  jars,  insulators, 
etc. 

Class  36.     Peat  fuel ;  brickettes. 
Class  37.     Breweries;  bottling  works. 

Note  by  board. — Includes  brewery  teamsters  and  helpers,  man- 
ufacture of  ammonia  and  alcohol,  2  per  cent. 

Class  38.  Cordage ;  working  in  wool,  cloth,  leather, 
paper,  brush,  rubber  or  textile  not  otherwise  specified. 

Note  by  board. — Includes  broom-making,  1%  per  cent. 

Class  39.  Working  in  food  stuffs,  including  oils, 
fruits,  vegetables. 

Note  by  board. — Includes  candy  and  cracker  factories,  exclud- 
ing only  drivers  and  office  force. 


§  124      WORKMEN'S  COMPENSATION  AND  INSURANCE.      276 

Class  40.     Condensed  milk;  creameries. 
Class  41.     Printing;    electrotyping;    photo-engrav- 
ing; engraving;  lithographing;  making  jewelry. 

Note  by  board — Includes  linotypers,  compositors,  proof  readers 
and  foremen  in  room  with  machinery  or  shafting;  errand  boys. 

Excludes  bookkeepers  and  office  force,  hand  engravers  not  in 
room  with  machinery. 

Class  42.  Stevedoring;  longshoring;  wharf  opera- 
tion. 

Class  43.  Stock  yards ;  packing  houses ;  making 
soap,  tallow,  lard,  grease;  tanneries. 

Class  44.  Artificial  ice,  refrigerating  or  cold  stor- 
age plants. 

Note  by  board.— Excludes  refrigerators  of  retail  meat  markets, 
etc. 

Includes  ice  wagon  drivers  and  helpers. 

Class  45.     Theater  stage  employes. 

Note  by  board. — Excludes  moving  picture  operators. 

Class  46.  Fire  works  manufacturing;  powder 
works. 

Class  47.     Creosoting  works ;  pile  treating  works. 

Note  by  board. — Class  48  created  August  14,  1911.  Includes  all 
funds  derived  from  "elective  non-hazardous"  employments. 

If  a  single  establishment  or  work  comprises  several 
occupations  listed  in  this  section  in  different  risk  classes, 
the  premium  shall  be  computed  according  to  the  payroll 
of  each  occupation  if  clearly  separable;  otherwise  an 
average  rate  of  premium  shall  be  charged  for  the  entire 
establishment,  taking  into  consideration  the  number  of 
employes  and  the  relative  hazards.  If  an  employer 
besides  employing  workmen  in  extra  hazardous  em- 
ployment shall  also  employ  workmen  in  employments 
not  extra  hazardous  the  provisions  of  this  act  shall  apply 
only  to  the  extra  hazardous  departments  and  employ- 
ments and  the  workmen  employed  therein.  In  com- 
puting the  payroll  the  entire  compensation  received  by 


277  WASHINGTON  ACT.  §  124 

every  workman  employed  in  extra  hazardous  employ- 
ment shall  be  included,  whether  it  be  in  the  form  of 
salary,  wage,  piece  work,  overtime,  or  any  allowance  in 
the  way  of  profit-sharing,  premium  or  otherwise,  and 
whether  payable  in  money,  board,  or  otherwise. 

Note  by  board. — The  hazard  of  the  business  or  enterprise 
determines  the  application  of  the  act  rather  than  the  degree  of 
hazard  which  the  individual  workman  is  subjected  to.  Hazardous 
departments  are  the  unit  of  contribution,  even  though  embracing 
employe's  rarely  in  danger  of  injury.  (Opinion  Attorney-General, 
Sept.  8,  1911.) 

Ruled  outside  the  scope  of  the  act:  Operation  and  mainten- 
ance of  elevators  and  individual  steam  heating  plants  in  office 
buildings,  hotels,  apartment  houses,  residences,  retail  stores,  etc. 
Farm  hands  grubbing  stumps  even  with  blasting  powder  as  an 
incident  to  the  business  of  farming,  not  within  the  act. 

The  premium  of  any  establishment  given  an  average  rate  is 
credited  pro  rata  to  the  respective  classes  represented  by  the 
department  payrolls. 

Sec.  5.  Schedule  of  Awards. — Each  workman  who 
shall  be  injured  whether  upon  the  premises  or  at  the 
plant  or,  he  being  in  the  course  of  his  employment, 
away  from  the  plant  of  his  employer,  or  his  family  or 
dependents  in  case  of  death  of  the  workman,  shall  re- 
ceive out  of  the  accident  fund  compensation  in  accord- 
ance with  the  following  schedule,  and,  except  as  in  this 
act  otherwise  provided,  such  payment  shall  be  in  lieu 
of  any  and  all  rights  of  action  whatsoever  against  any 
person  whomsoever. 

Note  by  board.— Compensation  is  payable  whenever  four  facts 
appear,  namely: 

(1)  The  business  of  the  employer  was  within  the  scope  of 
this  act; 

(2)  The  employe  was  injured; 

(3)  Such  injury  occurred  out  of  and  incidental  to  his  em- 
ployment; 

(4)  Such  injury   was  not  caused   by  wilful   misconduct     It 
makes  no  difference  whose  fault  it  was  or  who  was  to  blame.    It  is 
sufficient  that  the  industry  caused  the  injury. 

The  finding  of  the  department  of  the  non-existence  of  any  one 
of  the  facts  above  enumerated  would  result  in  the  denial  of  an 


§  124      WORKMEN'S  COMPENSATION  AND  INSURANCE.      278 

award,   and   in   such  case   an  appeal   is   allowed,   as   provided   in 
section  20. 

Compensation  Schedule. 

(a)  Where  death  results  from  the  injury  the  ex- 
penses of  burial  shall  be  paid  in  all  cases,  not  to  exceed 
$75.00  in  any  case,  and, 

(1)  If  the  workman  leaves  a  widow  or  invalid  wid- 
ower,  a   monthly   payment   of   $20.00   shall    be    made 
throughout  the  life  of  the  surviving  spouse,  to  cease  at 
the  end  of  the  month  in  which  remarriage  shall  occur; 
and  the  surviving  spouse  shall  also  receive  $5.00    per 
month  for  each  child  of  the  deceased  under  the  age  of 
sixteen  years  at  time  of  the  occurrence  of  the  injury  un- 
til such  minor  child  shall  reach  the  age  of  sixteen  years, 
but  the  total  monthly  payment  uner  this  paragraph  (1) 
of  subdivision  (a)  shall  not  exceed  $35.00.    Upon  remar- 
riage of  a  widow  she  shall  receive,  once  and  for  all,  a 
lump  sum  equal  to  twelve  times  her  monthly  allowance, 
viz.,  the  sum  of  $240.00,  but  the  monthly  payment  for 
the  child  or  children  shall  continue  as  before. 

(2)  If  the  workman  leaves  no  wife  or  husband,  but 
a  child  or  children  under  the  age  of  sixteen  years,  a 
monthly  payment  of  $10.00  shall  be  made  to  each  such 
child  until  such  child  shall  reach  the  age  of  sixteen  years, 
but  the  total  monthly  payment  shall  not  exceed  $35.00, 
and  any  deficit  shall  be  deducted  proportionately  among 
the  beneficiaries. 

(3)  If  the  workman  leaves  no  widow,  widower,  or 
child  under  the  age  of  sixteen  years,  but  leaves  a  de- 
pendent  or  dependents,   a  monthly  payment  shall  be 
made  to  each  dependent  equal  to  fifty  per  cent,  of  the 
average  monthly  support  actually  received  by  such  de- 
pendent from  the  workman  during  the  twelve  months 
next  preceding  the  occurrence  of  the  injury,  but  the 
total  payment  to  all  dependents  in  any  case  shall  not 
exceed  $20.00  per  month.     If  any  dependent  is  under 
the  age  of  sixteen  years  at  the  time  of  the  occurrence 


279  WASHINGTON  ACT.  §  124 

of  the  injury,  the  payment  to  such  dependent  shall  cease 
when  such  dependent  shall  reach  the  age  of  sixteen 
years.  The  payment  to  any  dependent  shall  cease  if  and 
when,  under  the  same  circumstances,  the  necessity 
creating  the  dependency  would  have  ceased  if  the  injury 
had  not  happened. 

If  the  workman  is  under  the  age  of  twenty-one  years 
and  unmarried  at  the  time  of  his  death,  the  parents  or 
parent  of  the  workman  shall  receive  $20.00  per  month 
for  each  month  after  his  death  until  the  time  at  which  he 
would  have  arrived  at  the  age  of  twenty-one  years. 

Jfote  by  board. — The  rule  existing  at  the  time  of  the  passage  of 
this  act  was  that  parents  of  a  minor  workman  were  not  entitled  to 
damages  for  his  death,  even  though  actually  dependent,  recovery 
being  limited  to  the  loss  of  his  services  during  minority.  The 
above  provision  is  the  exclusive  compensation  to  be  allowed  for  the 
death  of  an  unmarried  minor  workman.  (Opinion  Attorney  Gen- 
eral, Jan.  9,  1912.) 

The  reserve  to  be  set  apart  under  this  provision  is  the  present 
value  of  the  series  of  monthly  payments  to  be  made.  Ibid. 

(4)  In  the  event  a  surviving  spouse  receiving 
monthly  payments  shall  die,  leaving  a  child  or  children 
under  the  age  of  sixteen  years,  the  sum  he  or  she  shall 
be  receiving  on  account  of  such  child  or  children  shall 
be  thereafter,  until  such  child  shall  arrive  at  the  age  of 
sixteen  years,  paid  to  the  child  increased  100  per  cent., 
but  the  total  to  all  children  shall  not  exceed  the  sum  of 
thirty-five  dollars  per  month. 

(b)  Permanent  total  disability  means  the  loss  of 
both  legs  or  both  arms,  or  one  leg  and  one  arm,  total 
loss  of  eyesight,  paralysis  or  other  condition  perma- 
nently incapacitating  the  workman  from  performing  any 
work  at  any  gainful  occupation. 

When  permanent  total  disability  results  from  the 
injury  the  workman  shall  receive  monthly  during  the 
period  of  such  disability: 

(1)  If  unmarried  at  the  time  of  the  injury,  the  sum 
of  $20.00. 


§124      WORKMEN'S  COMPENSATION  AND  INSURANCE.      280 

(2)  If  the  workman  have  a  wife  or  invalid  husband, 
but  no  child  under  the  age  of  sixteen  years,  the  sum  of 
$25.00.     If  the  husband  is  not  an  invalid,  the  monthly 
amount  of  $25.00  shall  be  reduced  to  $15.00. 

(3)  If  the  workman  have  a  wife  or  husband  and/ a 
child  or  children  under  the  age  of  sixteen  years,  or,  be- 
ing a  widow  or  widower,  have  any  such  child  or  chil- 
dren, the  monthly  payment  provided  in  the  preceding 
paragraph  shall  be  increased  by  five  dollars  for  each 
such  child  until  such  child  shall  arrive  at  the  age  of  six- 
teen years,  but  the  total  monthly  payment  shall  not  ex- 
ceed thirty-five  dollars. 

(c)  If  the  injured  workman  die  during  the  period 
of  total  disability,  whatever  the  cause  of  death,  leaving 
a  widow,  invalid  widower  or  child  under  the  age  of 
sixteen  years,  the  surviving  widow  or  invalid  widower 
shall  receive  twenty  dollars  per  month  until  death  or  re- 
marriage, to  be  increased  five  dollars  per  month  for 
each  child  under  the  age  of  sixteen  years  until  such  child 
shall  arrive  at  the  age  of  sixteen  years ;  but  if  such  child 
is  or  shall  be  without  father  or  mother,  such  child  shall 
receive  ten  dollars  per  month  until  arriving  at  the  age  of 
sixteen  years.     The  total  combined  monthly  payment 
under  this  paragraph  shall  in  no  case  exceed  thirty-five 
dollars.    Upon  remarriage  the  payments  on  account  of 
a  child  or  children  shall  continue  as  before  to  the  child 
or  children. 

(d)  When  the  total  disability  is  only  temporary, 
the  schedule  of  payment  contained  in  paragraphs  (1), 
(2)  and  (3)  of  the  foregoing  subdivision  (b)  shall  apply 
so  long  as  the  total  disability  shall  continue,  increased 
50  per  cent,  for  the  first  six  months  of  such  continuance, 
but  in  no  case  shall  the  increase  operate  to  make  the 
monthly  payment  exceed  sixty  per  cent,  of  the  monthly 
wage   (the  daily  wage  multiplied  by  twenty-six)    the 
workman  was  receiving  at  the  time  of  his  injury.     As 
soon  as  recovery  is  so  complete  that  the  present  earning 


28 1  WASHINGTON  ACT.  §  124 

power  of  the  workman,  at  any  kind  of  work,  is  restored 
to  that  existing  at  the  time  of  the  occurrence  of  the  in- 
jury the  payments  shall  cease.  If  and  so  long  as  the 
present  earning  power  is  only  partially  restored  the  pay- 
ments shall  continue  in  the  proportion  which  the  new 
earning  power  shall  bear  to  the  old.  No  compensation 
shall  be  payable  out  of  the  accident  fund  unless  the  loss 
of  earning  power  shall  exceed  five  per  cent. 

Note  by  board.— Maximum  Monthly  Awards  Under  Sec.  5, 
Paragraph   (d). 


d 

®   - 

c    ~ 

Injured  Worker                      jg 

2 

-o 

o   a> 

a  2 

o 

2 

2 

0 

o 

O 

o  2 

Having   able-bodied   husband $22  50  $30  00  $37  50  $45  00 

Unmarried    . 30  00  

Having  wife  or  invalid  husband 37  50  45  00  52  50  52  50 

Widow   or   widower 30  00  37  50  45  00  52  50 

To  establish  a  valid  claim  under  this  section,  the  injured  work- 
man need  not  be  so  helpless  as  to  require  the  assistance  of  a  nurse, 
but  there  must  be  professional  certification  of  his  being  entirely 
incapable  of  doing  any  gainful  work,  for  a  period  of  time  resulting 
in  a  loss  of  not  less  than  5  per  cent,  of  his  monthly  wage. 

Awards  under  this  paragraph  for  a  temporary  period,  paid 
monthly  or  otherwise,  not  to  be  deducted  from  awards  for  dismem- 
berment or  "permanent  partial  disability"  provided  in  subdivision 
(f).  (Opinion  Attorney-General,  Dec.  12,  1911.) 

The  award  of  50  per  cent,  increase  over  the  rates  scheduled  in 
subdivision  (b)  may  be  paid  monthly  or  at  the  termination  of  the 
disability.  Ibid. 

The  Opinion  of  Attorney-General:  A  stevedore  who  was  totally 
temporarily  disabled  for  a  period  of  seventeen  days  and  was 
divorced  three  years  ago  but  had  evidently  paid  $200  alimony  during . 
that  time.  Held  that  the  workman  was  unmarried  at  the  time  of 
his  injury,  and  consequently  that  his  compensation  can  not  be 
increased  by  reason  of  a  legal  obligation  to  contribute  to  the  support 
of  his  former  wife. 

(e)  For  every  case  of  injury  resulting  in  death  or 
permanent  total  disability  it  shall  be  the  duty  of  the 
department  to  forthwith  notify  the  state  treasurer,  and 


§  124      WORKMEN'S  COMPENSATION  AND  INSURANCE.      282 

he  shall  set  apart  out  of  the  accident  fund  a  sum  of 
money  for  the  case,  to  be  known  as  the  estimated  lump 
value  of  the  monthly  payments  provided  for  it,  to  be 
calculated  upon  the  theory  that  a  monthly  payment  of 
twenty  dollars,  to  a  person  thirty  years  of  age,  is  equal 
to  a  lump  sum  payment,  according  to  the  expectancy  of 
life  as  fixed  by  the  American  Mortality  Table,  of  four 
thousand  dollars,  but  the  total  in  no  case  to  exceed  the 
sum  of  four  thousand  dollars.  The  state  treasurer  shall 
invest  said  sum  at  interest  in  the  class  of  securities  pro- 
vided by  law  for  the  investment  of  the  permanent  school 
fund,  and  out  of  the  same  and  its  earnings  shall  be  paid 
the  monthly  installments  and  any  lump  sum  payment 
then  or  thereafter  arranged  for  the  case.  Any  deficiency 
shall  be  made  good  out  of,  and  any  balance  or  overplus 
shall  revert  to  the  accident  fund.  The  state  treasurer 
shall  keep  accurate  account  of  all  such  segregations  of 
the  accident  fund,  and  may  borrow  from  the  main  fund 
to  meet  monthly  payments  pending  conversion  into 
cash  of  any  security,  and  in  such  case  shall  repay  such 
temporary  loan  out  of  the  cash  realized  from  the  se- 
curity. 

Note  by  board. — "The  industries  of  today  shall  provide  for  the 
accidents  of  today."  The  reserve  to  guarantee  the  continuance  of 
the  pensions  provided,  "set  apart  for  a  beneficiary  over  thirty  years 
of  age  should  be  the  proportionate  part  of  $4,000,  determined  by  the 
relation  of  the  expectancy  of  the  life  of  the  beneficiary  to  the  ex- 
pectancy of  one  thirty  years  of  age."  (Opinion  Attorney-General, 
Jan.  9,  1912.) 

To  the  reserve  of  a  widow  is  added  a  reserve  for  children  under 
16,  but  not  to  exceed  $4,000  set  apart  "for  the  case."  Ibid. 

Expectancy  of  life:  Age  30,  35.33  years;  40,  28.18  years;  50,  20.91 
•years;  60,  14.10  years;  70,  8.48  years. 

See  Insurance  Code,  Sec.  92,  Chap.  49,  Laws  1911. 

Payment  of  warrants  by  employer,  see  Sec.  26. 

(f)  Permanent  partial  disability  means  the  loss  of 
either  one  foot,  one  leg,  one  hand,  one  arm,  one  eye,  one 
or  more  fingers,  one  or  more  toes,  any  dislocation  where 
ligaments  are  severed,  or  any  other  injury  known  in  sur- 


283  WASHINGTON  ACT.  §  124 

gery  to  be  permanent  partial  disability.  For  any  perma- 
nent partial  disability  resulting  from  an  injury,  the 
workman  shall  receive  compensation  in  a  lump  sum  in 
an  amount  equal  to  the  extent  of  the  injury,  to  be  de- 
cided in  the  first  instance  by  the  department,  but  not  in 
any  case  to  exceed  the  sum  of  $1,500.  The  loss  of  one 
major  arm  at  or  above  the  elbow  shall  be  deemed  the 
maximum  permanent  partial  disability.  Compensation 
for  any  other  permanent  partial  disability  shall  be  in  the 
proportion  which  the  extent  of  such  disability  shall  bear 
to  the  said  maximum.  If  the  injured  workman  be  under 
the  age  of  twenty-one  years  and  unmarried,  the  par- 
ents or  parent  shall  also  receive  a  lump  sum  payment 
equal  to  ten  per  cent,  of  the  amount  awarded  the  minor 
workman. 

Note  by  board.— Award  hereunder  dependent  upon  surgical  dis- 
charge and  proofs  when  the  extent  of  the  injury  is  determinate. 
See  Subd.  (d).  A  lump  sum  will  not  be  paid  where  total  disability 
is  probable,  but  monthly  allowances  under  (d). 

Awards  made  under  this  section  are  according  to  a  surgical  scale 
of  relative  impairment  of  earning  capacity.  Previous  wages  or 
specialized  value  of  lost  members  can  not  be  considered.  While  the 
workman  may  not  get  full  "compensation,"  he  will  always  get  some 
compensation,  without  expense  to  him  and  at  a  time  when  he  most 
needs  it. 

(g)  Should  a  further  accident  occur  to  a  workman 
already  receiving  a  monthly  payment  under  this  section 
for  a  temporary  disability,  or  who  has  been  previously 
the  recipient  of  a  lump  sum  payment  under  this  act,  his 
future  compensation  shall  be  adjusted  according  to  the 
other  provisions  of  this  section  and  with  regard  to  the 
combined  effect  of  his  injuries,  and  his  past  receipt  of 
money  under  this  act. 

(h)  If  aggravation,  diminution,  or  termination  of 
disability  takes  place  or  be  discovered  after  the  rate  of 
compensations  shall  have  been  established  or  compensa- 
tion terminated  in  any  case  the  department  may,  upon 
the  application  of  the  beneficiary  or  upon  its  own  mo- 


§124     WORKMEN'S  COMPENSATION  AND  INSURANCE.      284 

tion,  readjust  for  future  application  the  rate  of  compen- 
sation in  accordance  with  the  rules  in  this  section  pro- 
vided for  the  same,  or  in  a  proper  case  terminate  the 
payments. 

(i)  A  husband  or  wife  of  an  injured  workman,  liv- 
ing in  a  state  of  abandonment  for  more  than  one  year 
at  the  time  of  the  injury  or  subsequently,  shall  not  be  a 
beneficiary  under  this  act. 

Note  by  board. — Payments  provided  in  subdivisions  (b)  and  (d) 
modified  when  the  above  family  condition  exists. 

(j)  If  a  beneficiary  shall  reside  or  remove  out  of 
the  state  the  department  may,  in  its  discretion,  convert 
any  monthly  payments  provided  for  such  case  into  a 
lump  sum  payment  (not  in  any  case  to  exceed  $4,000.00) 
upon  the  theory,  according  to  the  expectancy  of  life  as 
fixed  by  the  American  Mortality  Table,  that  a  monthly 
payment  of  $20.00  to  a  person  thirty  years  of  age  is 
worth  $4,000.00,  or,  with  the  consent  of  the  beneficiary, 
for  a  smaller  sum. 

Tfote  by  board.— See  Sec.  7,  note. 

(k)  Any  court  review  under  this  section  shall  be 
initiated  in  the  county  where  the  workman  resides  or 
resided  at  the  time  of  the  injury,  or  in  which  the  injury 
occurred. 

Sec.  6.  Intentional  Injuries — Status  of  Minors. — If 
injury  or  death  results  to  a  workman  from  the  deliberate 
intention  of  the  workman  himself  to  produce  such  in- 
jury or  death,  neither  the  workman  nor  the  widow, 
widower,  child  or  dependent  of  the  workman  shall  re- 
ceive any  payment  whatsoever  out  of  the  accident  fund. 
If  injury  or  death  results  to  a  workman  from  the  delibe- 
rate intention  of  his  employer  to  produce  such  injury  or 
death,  the  workman,  the  widow,  widower,  child  or  de- 
pendent of  the  workman  shall  have  the  privilege  to  take 
under  this  act  and  also  have  cause  of  action  against  the 
employer,  as  if  this  act  had  not  been  enacted,  for  any 


285  WASHINGTON   ACT.  §  124 

excess  of  damage  over  the  amount  received  or  receiv- 
able under  this  act. 

A  minor  working  at  an  age  legally  permitted  under 
the  laws  of  this  state  shall  be  deemed  sui  juris  for  the 
purpose  of  this  act,  and  no  other  person  shall  have  any 
cause  of  action  or  right  to  compensation  for  an  injury 
to  such  minor  workman  except  as  expressly  provided 
in  this  act,  but  in  the  event  of  a  lump  sum  payment  be- 
coming due  under  this  act  to  such  minor  workman,  the 
management  of  the  sum  shall  be  within  the  probate 
jurisdiction  of  the  courts  the  same  as  other  property  of 
minors. 

Note  by  board. — Where  lump  sums  awarded  amount  to  a  suffi- 
cient fund  to  reasonably  justify  investment,  a  guardian  to  be  ap- 
pointed. 

Sec.  7.  Conversion  Into  Lump  Sum  Payment. — In 
case  of  death  or  permanent  total  disability  the  monthly 
payment  provided  may  be  converted,  in  whole  or  in 
part,  into  a  lump  sum  payment  (not  in  any  case  to  ex- 
ceed $4,000.00),  on  the  theory,  according  to  the  expect- 
ancy of  life  as  fixed  by  the  American  Mortality  Table, 
that  a  monthly  payment  of  $20.00  to  a  person  thirty 
years  of  age  is  worth  the  sum  of  $4,000.00,  in  which 
event  the  monthly  payment  shall  cease  in  whole  or  in 
part  accordingly  or  proportionately.  Such  conversion 
may  only  be  made  after  the  happening  of  the  injury  and 
upon  the  written  application  of  the  beneficiary  (in  case 
of  minor  children,  the  application  may  be  by  either 
parent)  to  the  department,  and  shall  rest  in  the  discre- 
tion of  the  department.  Within  the  rule  aforesaid  the 
amount  and  value  of  the  lump  sum  payment  may  be 
agreed  upon  between  the  department  and  the  benefi- 
ciary. 

Note  by  board.— The  power  here  given  to  the  department  will,  as 
a  matter  of  policy,  be  seldom  exercised,  as  in  practically  all  cases 
It  is  better  for  the  beneficiaries  to  receive  the  award  to  which  they 
are  entitled  in  installments  at  stated  intervals,  rather  than  in  a 
lump  sum.  The  reasons  for  this  are  obvious. 


§124      WORKMEN'S  COMPENSATION  AND  INSURANCE.      286 

Sec.  8.  Defaulting  Employers. — If  any  employer 
shall  default  in  any  payment  to  the  accident  fund  here- 
inbefore in  this  act  required,  the  sum  due  shall  be  col- 
lected by  action  at  law  in  the  name  of  the  state  as  plain- 
tiff, and  such  right  of  action  shall  be  in  addition  to  any 
other  right  of  action  or  remedy.  In  respect  to  any  in- 
jury happening  to  any  of  his  workmen  during  the  period 
of  any  default  in  the  payment  of  any  premium  under 
section  4,  the  defaulting  employer  shall  not,  if  such  de- 
fault be  after  demand  for  payment,  be  entitled  to  the 
benefits  of  this  act,  but  shall  be  liable  to  suit  by  the  in- 
jured workman  (or  the  husband,  wife,  child  or  depen- 
dent of  such  workman  in  case  death  result  from  the  acci- 
dent), as  he  would  have  been  prior  to  the  passage  of  this 
act. 

In  case  the  recovery  actually  collected  in  such  suit 
shall  equal  or  exceed  the  compensation  to  which  the 
plaintiff  therein  would  be  entitled  under  this  act,  the 
plaintiff  shall  not  be  paid  anything  out  of  the  accident 
fund;  if  the  said  amount  shall  be  less  than  such  com- 
pensation under  this  act,  the  accident  fund  shall  contri- 
bute the  amount  of  the  deficiency.  The  person  so  en- 
titled under  the  provisions  of  this  section  to  sue  shall 
have  the  choice  (to  be  exercised  before  suit)  of  pro- 
ceeding by  suit  or  taking  under  this  act.  If  such  person 
shall  take  under  this  act,  the  cause  of  action  against  the 
employer  shall  be  assigned  to  the  state  for  the  benefit 
of  the  accident  fund.  In  any  suit  brought  upon  such 
cause  of  action  the  defense  of  fellow  servant  and  as- 
sumption of  risk  shall  be  inadmissible,  and  the  doctrine 
of  comparative  negligence  shall  obtain.  Any  such  cause 
of  action  assigned  to  the  state  may  be  prosecuted  or 
compromised  by  the  department  in  its  discretion.  Any 
compromise  by  the  workman  of  any  such  suit,  which 
would  leave  a  deficiency  to  be  made  good  out  of  the 
accident  fund,  may  be  made  only  with  the  written  ap- 
proval of  the  department. 


287  WASHINGTON  ACT.  §  124 

Note  by  board — The  defaulting  employer  can  not  avail  himself 
of  the  "common  law"  defenses,  which  have  been  so  effective  in  de- 
feating personal  injury  claims  heretofore,  where  the  fact  of  the  in- 
jury to  his  employ^  is  not  contested. 

These  defenses  now  abolished,  commonly  referred  to  as  "con- 
tributory negligence,"  "assumption  of  risk,"  and  "fellow  servant 
rule,"  are: 

1.  That  the  employe  was  not,  when  injured,  in  the  exercise  of 
due  care,  or  was  guilty  of  contributory  negligence; 

2.  That  the  injury  received   by   the  employ^   was   one   of  the 
ordinary  risks  incident  to  the  contract  of  employment; 

3.  That  the  injury  was  the  result  of  the  negligence  of  a  fellow 
servant. 

It  will  thus  be  seen  that  by  the  common-law  rule  the  employs 
assumes  all  of  the  ordinary  risks  incident  to  his  employment,  and 
that  his  employer  is  only  liable  when  he  is  guilty  of  negligence  and 
the  employs  is  wholly  free  from  negligence  and  his  injury  was  not 
caused  by  the  negligence  of  a  fellow  servant. 

Under  this  section  employers  who  have  not  contributed  to  the 
state  insurance  fund  are  deprived  of  the  common-law  defenses,  and 
it  would  seem  that  the  only  effective  defense  available  in  an  action 
for  damages  for  an  alleged  injury  occurring  to  an  employe  in  the 
course  of  his  employment  would  be  that  no  injury  in  fact  had  been 
sustained,  or  that  the  injury  received  was  self-inflicted  or  that  the 
employer  was  himself  free  from  fault.  The  amount  of  the  recovery 
should  be  determined  by  the  "comparative  negligence"  of  all  parties. 

The  injured  employe  once  having  exercised  his  option,  the  deci- 
sion is  final  and  may  not  be  withdrawn. 

Sec.  9.  Employer's  Responsibility  for  Safeguard. — 
If  any  workman  shall  be  injured  because  of  the  absence 
of  any  safeguard  or  protection  required  to  be  provided 
or  maintained  by,  or  pursuant  to,  any  statute  or  ordi- 
nance, or  any  departmental  regulation  under  any  statute, 
or  be,  at  the  time  of  the  injury,  of  less  than  the  maxi- 
mum age  prescribed  by  law  for  the  employment  of  a 
minor  in  the  occupation  in  which  he  shall  be  engaged 
when  injured,  the  employer  shall,  within  ten  days  after 
demand  therefor  by  the  department,  pay  into  the  acci- 
dent fund,  in  addition  to  the  same  required  by  section  4 
to  be  paid: 

(a)     In  case  the  consequent  payment  to  the  work- 


§  124      WORKMEN'S  COMPENSATION  AND  INSURANCE.      288 

man  out  of  the  accident  fund  be  a  lump  sum,  a  sum 
equal  to  50  per  cent,  of  that  amount. 

(b)  In  case  the  consequent  payment  to  the  work- 
man be  payable  in  monthly  payments,  a  sum  equal  to  50 
per  cent,  of  the  lump  value  of  such  monthly  payment, 
estimated  in  accordance  with  the  rule  stated  in  section  7. 

Note  by  board — A  boy  under  14  years  of  age,  or  a  girl  under  16 
years,  may  not  be  employed  in  dangerous  trades  without  written  per- 
mit from  superior  court.  (Sec.  2447,  Rem.  and  Bal.  Code.)  Children 
under  15  may  not  be  so  employed  while  school  is  in  session.  (Sec. 
4715,  Rem.  and  Bal.  Code.) 

See  Sec.  30  herein.  Sec.  2446,  Rem.  and  Bal.  Code  ruled  not 
applicable  to  factories. 

The  foregoing  provisions  of  this  act  shall  not  apply 
to  the  employer  if  the  absence  of  ^uch  guard  or  protec- 
tion be  due  to  the  removal  thereof  by  the  injured  work- 
man himself  or  with  his  knowledge  by  any  of  his  fellow 
workmen,  unless  such  removal  be  by  order  or  direction 
of  the  employer  or  superintendent  or  foreman  of  the 
employer,  or  any  one  placed  by  the  employer  in  control 
or  direction  of  such  workman.  If  the  removal  of  such 
guard  or  protection  be  by  the  workman  himself  or  with 
his  consent  by  any  of  his  fellow  workmen,  unless  done 
by  order  or  direction  of  the  employer  or  the  superin- 
tendent or  foreman  of  the  employer,  or  any  one  placed 
by  the  employer  in  control,  or  direction  of  such  work- 
men, the  schedule  of  compensation  provided  in  section 
5  shall  be  reduced  10  per  cent,  for  the  individual  case  of 
such  workman. 

Sec.  10.  Exemption  of  Awards. — No  money  paid  or 
payable  under  this  act  out  of  the  accident  fund  shall, 
prior  to  issuance  and  delivery  of  the  warrant  therefor, 
be  capable  of  being  assigned,  charged,  nor  ever  be  taken 
in  execution  or  attached  or  garnished,  nor  shall  the  same 
pass  to  any  other  person  by  operation  of  law.  Any  such 
assignment  or  charge  shall  be  void. 

Note  by  board — This  section  is  necessary  in  order  to  protect  the 


289  WASHINGTON  ACT.  §  124 

injured  employe"  and  his  dependents.  If  the  claim  were  made  as- 
signable he  could  sell  it  for  a  small  sum,  and  thus  deprive  his  de- 
pendents of  benefits  to  which  they  are  entitled.  The  compensation 
also  is  made  exempt  from  his  debts  on  the  same  principle  that 
wages  now  are  made  exempt.  The  justice  and  fairness  of  this 
should  be  conceded  by  all. 

Sec.  11.  Non-Waiver  of  Act  by  Contract. — No  em- 
ployer or  workman  shall  exempt  himself  from  the  bur- 
den or  waive  the  benefits  of  this  act  by  any  contract, 
agreement,  rule  or  regulation,  and  any  such  contract, 
agreement,  rule  or  regulation  shall  be  pro  tanto  void. 

Sec.  12.  Filing  Claim  for  Compensation. — (a) 
Where  a  workman  is  entitled  to  compensation  under 
this  act  he  shall  file  with  the  department,  his  application 
for  such,  together  with  the  certificate  of  the  physician 
who  attended  him,  and  it  shall  be  the  duty  of  the  physi- 
cian to  inform  the  injured  workman  of  his  rights  under 
this  act  and  to  lend  all  necessary  assistance  in  making 
this  application  for  compensation  and  such  proof  of 
other  matters  as  required  by  the  .rules  of  the  department 
without  charge  to  the  workman. 

Note  by  board — The  physician's  report  is  a  duty  to  the  state;  no 
payment  is  allowed  therefor.  Charge  for  professional  services  ren- 
dered a  workman  is  his  personal  debt,  unless  the  employer  con- 
tracted to  pay  the  same.  See  Sec.  24,  4,  7. 

(b)  Where  death  results  from  injury  the  parties 
entitled  to  compensation  under  this  act,  or  some  one  in 
their  behalf,  shall  make  application  for  the  same  to  the 
department,   which   application   must   be   accompanied 
with  proof  of  death  and  proof  of  relationship  showing 
the  parties  to  be  entitled  to  compensation  under  this 
act,  certificates  of  attending  physician,  if  any,  and  such 
other  proof  as  required  by  the  rules  of  the  department. 

(c)  If  change  of  circumstances  warrant  an  increase 
or  rearrangement  of  compensation,  like  application  shall 
be  made  therefor.     No  increase  or  rearrangement  shall 
be  operative  for  any  period  prior  to  application  therefor. 

(d)  No  application  shall  be  valid  or  claim  there- 

19— BOYD  W  C 


§  124      WORKMEN'S  COMPENSATION  AND  INSURANCE.      290 

under  enforceable  unless  filed  within  one  year  after  the 
day  upon  which  the  injury  occurred  or  the  right  thereto 
accrued. 

i  Note  by  board — All  blanks  necessary  in  the  judgment  of  the  de- 
partment for  the  administration  of  the  law  are  furnished  free  of 
cost  to  all  employers  and  employe's  coming  within  the  purview  of 
the  act. 

Sec.  13.  Medical  Examination. — Any  workman  en- 
titled to  receive  compensation  under  this  act  is  required, 
if  requested  by  the  department,  to  submit  himself  for 
medical  examination  at  a  time  and  from  time  to  time  at 
a  place  reasonably  convenient  for  the  workman  and  as 
may  be  provided  by  the  rules  of  the  department.  If  the 
workman  refuses  to  submit  to  any  such  examination,  or 
obstructs  the  same,  his  rights  to  monthly  payments 
shall  be  suspended  until  such  examination  has  taken 
place,  and  no  compensation  shall  be  payable  during  or 
for  account  of  such  period. 

Note  by  board — Refusal  to  submit  to  examination  where  a  lump 
sum  award  is  anticipated  will  be  prima  facie  cause  for  rejection 
of  claim  which  may  be  filed  within  the  year. 

Sec.  14.  Notice  of  Accident. — Whenever  any  acci- 
dent occurs  to  any  workman  it  shall  be  the  duty  of  the 
employer  to  at  once  report  such  accident  and  the  injury 
resulting  therefrom  to  the  department,  and  also  to  any 
local  representative  of  the  department.  Such  report 
shall  state: 

1.  The  time,  cause  and  nature  of  the  accident  and 
injuries,  and  the  probable  duration  of  the  injury  result- 
ing therefrom. 

2.  Whether  the  accident   arose   out   of  or  in   the 
course  of  the  injured  person's  employment. 

3.  Any  other  matters  the  rules  and  regulations  of 
the  department  may  prescribe. 

Note  by  board — "Every  person  who,  after  due  notice,  shall  re- 
fuse or  neglect  to  make  or  furnish  any  statement,  report  or  infor- 
mation lawfully  required  of  him  by  any  public  officer,  or  who,  in 


WASHINGTON  ACT.  §  124 

such  statement,  report  or  information  shall  make  any  wilfully  un- 
true, misleading  or  exaggerated  statement,  or  who  shall  wilfully 
hinder,  delay  or  obstruct  any  public  officer  in  the  discharge  of  his 
official  powers  or  duties,  shall  be  guilty  of  a  misdemeanor."  Rem. 
and  Bal.  Code,  Sec.  2672;  Sec.  420,  Chap.  249,  Laws  1909. 

Sec.  15.  Inspection  of  Employer's  Books. — The 
books,  records  and  payrolls  of  the  employer  pertinent  to 
the  administration  of  this  act  shall  always  be  open  to 
inspection  by  the  department  or  its  traveling  auditor, 
agent,  or  assistant,  for  the  purpose  of  ascertaining  the 
correctness  of  the  payroll,  the  men  employed,  and  such 
other  information  as  may  be  necessary  for  the  depart- 
ment and  its  management  under  this  act.  Refusal  on 
the  part  of  the  employer  to  submit  said  books,  records 
and  payrolls  for  such  inspection  to  any  member  of  the 
commission,  or  any  assistant  presenting  written  author- 
ity from  the  commission,  shall  subject  the  offending  em- 
ployer to  a  penalty  of  one  hundred  dollars  for  each  of- 
fense, to  be  collected  by  civil  action  in  the  name  of  the 
state  and  paid  into  the  accident  fund,  and  the  individual 
who  shall  personally  give  such  refusal  shall  be  guilty  of 
a  misdemeanor. 

Note  by  board. — Misdemeanor — Penalty,  imprisonment  in  county 
jail  not  to  exceed  90  days,  or  by  a  fine  not  to  exceed  $250.00.  Rem. 
and  Bal.  Code,  Sec.  2266;  Sec.  14,  Chap.  249,  Laws  1909. 

Sec.  16.  Penalty  for  Misrepresentation  as  to  Pay- 
roll.— Any  employer  who  shall  misrepresent  to  the  de- 
partment the  amount  of  payroll  upon  which  the  prem- 
ium under  this  act  is  based  shall  be  liable  to  the  state  in 
ten  times  the  amount  of  the  difference  in  premium  paid 
and  the  amount  the  employer  should  have  paid.  The 
liability  to  the  State  under  this  section  shall  be  enforced 
in  a  civil  action  in  the  name  of  the  State.  All  sums  col- 
lected under  this  section  shall  be  paid  into  the  accident 
fund. 

Sec.  17.  Public  and  Contract  Work. — Whenever 
the  State,  county  or  any  municipal  corporation  shall  en- 


§  124     WORKMEN'S  COMPENSATION  AND  INSURANCE.      292 

gage  in  any  extra  hazardous  work  in  which  workmen 
are  employed  for  wages,  this  act  shall  be  applicable 
thereto.  The  employer's  payments  into  the  accident 
fund  shall  be  made  from  the  treasury  of  the  State, 
county  or  municipality.  If  said  work  is  being  done  by 
contract,  the  payroll  of  the  contractor  and  the  sub-con- 
tractor shall  be  the  basis  of  computation,  and  in  the  case 
of  contract  work  consuming  less  than  one  year  in  per- 
formance the  required  payment  into  the  accident  fund 
shall  be  based  upon  the  total  payroll.  The  contractor 
and  any  sub-contractor  shall  be  subject  to  the  provisions 
of  the  act,  and  the  State  for  its  general  fund,  the  county 
or  municipal  corporation  shall  be  entitled  to  collect  from 
the  contractor  the  full  amount  payable  to  the  accident 
fund,  and  the  contractor,  in  turn  shall  be  entitled  to  col- 
lect from  the  sub-contractor  his  proportionate  amount  of 
the  payment.  The  provisions  of  this  section  shall  apply 
to  all  extra  hazardous  work  done  by  contract,  except 
that  in  private  work  the  contractor  shall  be  responsible, 
primarily  and  directly,  to  the  accident  fund  for  the  prop- 
er percentage  of  the  total  payroll  of  the  work  and  the 
owner  of  the  property  affected  by  the  contract  shall  be 
surety  for  such  payments.  Whenever  and  so  long  as, 
by  State  law,  city  charter  or  municipal  ordinance,  pro- 
vision is  made  for  municipal  employes  injured  in  the 
course  of  employment,  such  employes  shall  not  be  en- 
titled to  the  benefits  of  this  act  and  shall  not  be  included 

in  the  payroll  of  the  municipality  under  this  act. 
in  oh'. J •>,  -)iff  oj  -j!- ' 

Note  by  board — Payments  into  the  Accident  Fund  to  be  made  out 
of  the  treasury  of  the  city,  county,  school,  port  or  drainage  district; 
abstract  of  contractors'  payrolls,  as  well  as  of  the  direct  employe's 
in  hazard,  to  be  forwarded  to  the  department  monthly.  The  public 
corporation  is  entitled  (if  it  so  elect)  to  recoup  from  the  contractor. 
Contractors  in  such  work  required  to  file  payrolls  monthly  with  the 
city,  etc. 

No  distinction  in  rate  or  assessment  can  be  made  between  con- 
tractors, or  others,  in  public  or  private  work.  The  same  premium 
and  necessity  of  contribution  apply,  determined  by  the  payroll  of 


293  WASHINGTON  ACT.  §  124 

employes,  hazard,  accident  experience  of  the  class,  and  sound  dis- 
cretion of  the  department. 

Contractors  engaged  in  work  for  the  federal  government: 
Where  the  United  States  acquired  land  by  purchase  for  its  own 
use,  this  act  is  not  applicable  to  such  works  and  occupations  as 
may  be  carried  on  within  the  confines  of  such  land.  (Opinion  At- 
torney-General, Sept.  20,  1911.) 

An  expert  rendering  service  at  time  rates  is  an  independent  con- 
tractor only  where  he  fixes  the  condition  of  work  and  hazard. 

Sec.  18.  Interstate  Commerce. — The  provisions  of 
this  act  shall  apply  to  employers  and  workmen  engaged 
in  intrastate,  state  and  also  in  interstate  or  foreign  com- 
merce, for  whom  a  rule  of  liability  or  method  of  com- 
pensation has  been  or  may  be  established  by  the  Con- 
gress of  the  United  States,  only  to  the  extent  that  their 
mutual  connection  with  intrastate  work  may  and  shall 
be  clearly  separable  and  distinguishable  from  interstate 
or  foreign  commerce,  except  that  any  such  employer 
and  any  of  his  workmen  working  only  in  this  State  may, 
with  the  approval  of  the  department,  and  so  far  as  not 
forbidden  by  any  act  of  Congress,  voluntarily  accept  the 
provisions  of  this  act  by  filing  written  acceptances  with 
the  department.  Such  acceptances,  when  filed  with  and 
approved  by  the  department,  shall  subject  the  acceptors 
irrevocably  to  the  provisions  of  this  act  to  all  intents  and 
purposes  as  if  they  had  been  originally  included  in  its 
terms.  Payment  of  premium  shall  be  on  the  basis  of  the 
payroll  of  the  workmen  who  accept  as  aforesaid. 

Note  by  board— "The  state  legislature  is  without  power  to  pre- 
.  scribe  an  exclusive  remedy,"  where  an  injured  seaman  has  the 
right  of  relief  in  admiralty.  Act  limited  in  compulsory  operation 
"to  vessels  operating  upon  the  navigable  waters  of  the  state  with- 
out any  navigable  outlet  to  any  other  state  or  country."  (Opinion 
Attorney-General,  Oct.  28,  1911);  Of.  The  Genesee  Chief,  12  How. 
457 ;  West  v.  Martin,  51  Wash.  85. 

Loading  or  unloading  at  wharf,  see  The  Mary  Garrett,  63  Fed. 
1011;  Herman  v.  Port  Blakely  Mill  Co.,  69  Fed.  646. 

Interstate  commerce,  see  Southern  Ry.  Co.  v.  U.  S.  Sup.  Ct.,  Oct 
30,  1911,  164  Fed.  347 ;  Zikos  v.  O.  E.  &  N.  Co.,  179  Fed.  893. 

Sec.  19.     Elective  Adoption  of  Act.— Any  employer 


§  124      WORKMEN'S  COMPENSATION  AND  INSURANCE.      294 

and  his  employes  engaged  in  works  not  extra  hazardous 
may,  by  their  joint  election,  filed  with  the  department, 
accept  the  provisions  of  this  act,  and  such  acceptances, 
when  approved  by  the  department,  shall  subject  them 
irrevocably  to  the  provisions  of  this  act  to  all  intents 
and  purposes  as  if  they  had  been  originally  included  in 
its  terms.  Ninety  per  cent,  of  the  minimum  rate  speci- 
fied in  section  4  shall  be  applicable  to  such  case  until 
otherwise  provided  by  law. 

Note  by  board — Elective  non-hazardous  industries  or  occupa- 
tions segregated  into  Class  48  at  rate  of  $1.35  per  $100.00  of  payroll. 
(Opinion  Attorney-General,  Sept.  16,  1911.) 

Sec.  20.  Court  Review. — Any  employer,  workman, 
beneficiary,  or  person  feeling  aggrieved  at  any  decision 
of  the  department  affecting  his  interests  under  this  act 
may  have  the  same  reviewed  by  a  proceeding  for  that 
purpose,  in  the  nature  of  an  appeal,  initiated  in  the  su- 
perior court  of  the  county  of  his  residence  (except  as 
otherwise  provided  in  subdivisions  (1)  of  section  num- 
bered 5)  in  so  far  as  such  decision  rests  upon  questions 
of  fact,  or  on  the  proper  application  of  the  provisions  of 
this  act,  it  being  the  intent  that  matters  resting  in  the 
discretion  of  the  department  shall  not  be  subject  to  re- 
view. The  proceedings  in  every  such  appeal  shall  be 
informal  and  summary,  but  full  opportunity  to  be  heard 
shall  be  had  before  judgment  is  pronounced.  No  such 
appeal  shall  be  entertained  unless  notice  of  appeal  shall 
have  been  served  by  mail  or  personally  upon  some  mem- 
ber of  the  Commission  within  twenty  days  following  the 
rendition  of  the  decision  appealed  from  and  communi- 
cation thereof  to  the  person  affected  thereby.  No  bond 
shall  be  required,  except  that  an  appeal  by  the  employer 
from  a  decision  of  the  department  under  section  9  shall 
be  ineffectual  unless,  within  five  days  following  the  serv- 
ice of  notice  thereof,  a  bond,  with  surety  satisfactory 
to  the  court,  shall  be  filed,  conditioned  to  perform  the 
judgment  of  the  court.  Except  in  the  case  last  named 


295  WASHINGTON  ACT.  §  124 

an  appeal  shall  not  be  a  stay.  The  calling  of  a  jury  shall 
rest  in  the  discretion  of  the  court  except  that  in  cases 
arising  under  sections  9,  15  and  16  either  party  shall  be 
entitled  to  a  jury  trial  upon  demand.  It  shall  be  unlaw- 
ful for  any  attorney  engaged  in  any  such  appeal  to 
charge  or  receive  any  fee  therein  in  excess  of  a  reason- 
able fee,  to  be  fixed  by  the  court  in  the  case,  and,  if  the 
decision  of  the  department  shall  be  reversed  or  modified, 
such  fee  and  the  fees  of  medical  and  other  witnesses 
and  the  costs  shall  be  payable  out  of  the  administration 
fund,  if  the  accident  fund  is  affected  by  the  litigation.  In 
other  respects  the  practice  in  civil  cases  shall  apply.  Ap- 
peal shall  lie  from  the  judgment  of  the  superior  court  as 
in  other  civil  cases.  The  attorney  general  shall  be  the 
legal  adviser  of  the  department  and  shall  represent  it  in 
all  proceedings,  whenever  so  requested  by  any  of  the 
Commissioners.  In  all  court  proceedings  under  or  pur- 
suant to  this  act  the  decision  of  the  department  shall  be 
prima  facie  correct,  and  the  burden  of  proof  shall  be 
upon  the  party  attacking  the  same. 

Note  by  board— The  finding  and  award  of  the  department  ap- 
pears to  be  reversible  only  on  the  three  grounds:  (1)  That  it 
acted  without  or  in  excess  of  its  powers;  (2)  that  the  award  was 
procured  by  fraud;  (3)  that  the  findings  of  fact  by  the  department 
do  not  support  the  award. 

Sec.  21.  Creation  of  Department. — The  administra- 
tion of  this  act  is  imposed  upon  a  department,  to  be 
known  as  the  Industrial  Insurance  Department,  to  con- 
sist of  three  commissioners  to  be  appointed  by  the  gov- 
ernor. One  of  them  shall  hold  office  for  the  first  two 
years,  another  for  the  first  four  years,  and  another  for 
the  first  six  years  following  the  passage  and  approval  of 
this  act.  Thereafter  the  term  shall  be  six  years.  Each 
commissioner  shall  hold  until  his  successor  shall  be  ap- 
pointed and  shall  have  qualified.  A  decision  of  any  ques- 
tion arising  under  this  act  concurred  in  by  two  of  the 
commissioners  shall  be  the  decision  of  the  department. 


§  124      WORKMEN'S  COMPENSATION  AND  INSURANCE.      296 

The  governor  may  at  any  time  remove  any  commis- 
sioner from  office  in  his  discretion,  but  within  ten  days 
following  any  such  removal  the  governor  shall  file  in  the 
office  of  the  secretary  of  state  a  statement  of  his  reasons 
therefor.  The  commission  shall  select  one  of  their  mem- 
bers as  chairman.  The  main  office  of  the  commission 
shall  be  at  the  State  capitol,  but  branch  offices  may  be 
established  at  other  places  in  the  State.  Each  member 
of  the  commission  shall  have  power  to  issue  subpoenas 
requiring  the  attendance  of  witnesses  and  the  production 
of  books  and  documents. 

Note  by  board— See  Sec.  15,  note. 

Sec.  22.  Salary  of  Commissioners. — The  salary  of 
each  of  the  Commissioners  shall  be  thirty-six  hundred 
dollars  per  annum,  and  he  shall  be  allowed  his  actual  and 
necessary  traveling  and  incidental  expenses;  and  any 
assistant  to  the  Commissioners  shall  be  paid  for  each 
full  day's  service  rendered  by  him,  his  actual  and  neces- 
sary traveling  expenses  and  such  compensation  as  the 
Commission  may  deem  proper,  not  to  exceed  six  dollars 
per  day  to  an  auditor,  or  five  dollars  per  day  to  any 
other  assistant. 

Sec.  23.  Deputies  and  Assistants. — The  Commis- 
sioners may  appoint  a  sufficient  number  of  auditors  and 
assistants  to  aid  them  in  the  administration  of  this  act, 
at  an  expense  not  to  exceed  $5,000.00  per  month.  They 
may  employ  one  .or  more  physicians  in  each  county  for 
the  purpose  of  official  medical  examinations,  whose  com- 
pensation shall  be  limited  to  five  dollars  for  each  exam- 
ination and  report  therein.  They  may  procure  such 
record  books  as  they  may  deem  necessary  for  the  record 
of  the  financial  transactions  and  statistical  data  of  the 
department,  and  the  necessary  documents,  forms  and 
blanks.  They  may  establish  and  require  all  employers  to 
install  and  maintain  an  uniform  form  of  payroll. 

Sec.  24.     Conduct,  Management  and  Supervision  of 


297  WASHINGTON  ACT.  §  124 

Department. — The  Commission  shall,  in  accordance  with 
the  provisions  of  this  act: 

1.  Establish  and  promulgate  rules  governing  the 
administration  of  this  act. 

2.  Ascertain  and  establish  the  amounts  to  be  paid 
into  and  out  of  the  accident  fund. 

Jfote  by  board — It  is  contemplated  that  Class  Bulletins  to  em- 
phasize accident  prevention  in  various  industries  may  be  issued 
from  time  to  time;  and  Safety  Regulations  promulgated  after  con- 
sideration in  trade  conventions,  violation  of  which  may  automatic- 
ally increase  the  premium  rate  of  the  offending  employer. 

3.  Regulate  the  proof  of  accident  and  extent  there- 
of, the  proof  of  death  and  the  proof  of  relationship  and 
the  extent  of  dependency. 

4.  Supervise   the   medical,   surgical    and    hospital 
treatment  to  the  intent  that  same  may  be  in  all  cases 
suitable  and  wholesome. 

Note  by  board — There  is  no  fund  or  provision  for  payment  of 
charges  for  ambulance,  physician,  surgeon,  hospital,  nurse,  medi- 
cine or  surgical  appliances.  The  "first  aid"  provision  was  stricken 
from  the  proposed  act  before  passage  by  the  legislature.  See 
Appendix  II. 

5.  Issue  proper  receipts  for  moneys  received,  and 
certificates  for  benefits  accrued  and  accruing. 

6.  Investigate  the  cause  of  all  serious  injuries  and 
report  to  the  Governor  from  time  to  time  any  violations 
or  laxity  in  performance  of  protective  statutes  or  regu- 
lations coming  under  the  observation  of  the  department. 

7.  Compile   and    preserve    statistics    showing  the 
number  of  accidents  occurring  in  the  establishment  or 
works  of  each  employer,  the  liabilities  and  expenditures 
of  the  accident  fund  on  account  of,  and  the  premium  col- 
lected  from   the   same,   and  hospital   charges   and   ex- 
penses. 

8.  Make  annual  reports  to  the  Governor  (one  of 
them  not  more  than  sixty  nor  less  than  thirty  days  prior 
to  each  regular  session  of  the  legislature)  of  the  work- 
ings of  the  department,  and  showing  the  financial  status 


§  124      WORKMEN'S  COMPENSATION  AND  INSURANCE.      298 

and  the  outstanding  obligations  of  the  accident  fund, 
and  the  statistics  aforesaid. 

Sec.  25.  Medical  Witnesses. — Upon  the  appeal  of 
any  workman  from  any  decision  of  the  department  af- 
fecting the  extent  of  his  injuries  or  the  progress  of  the 
same,  the  court  may  appoint  not  to  exceed  three  physi- 
cians to  examine  the  physical  condition  of  the  appellant, 
who  shall  make  to  the  court  their  report  thereon,  and 
they  may  be  interrogated  before  the  court  by  or  on  be- 
half of  the  appellant  in  relation  to  the  same.  The  fee 
of  each  shall  be  fixed  by  the  court,  but  shall  not  exceed 
ten  dollars  per  day  each. 

Sec.  26.  Disbursement  of  Funds. — Disbursement 
out  of  the  funds  shall  be  made  only  upon  warrants 
drawn  by  the  State  Auditor  upon  vouchers  therefor 
transmitted  to  him  by  the  department  and  audited  by 
him.  The  State  Treasurer  shall  pay  every  warrant  out 
of  the  fund  upon  which  it  is  drawn.  If,  at  any  time, 
there  shall  not  be  sufficient  money  in  the  fund  on  which 
any  such  warrant  shall  have  been  drawn  wherewith  to 
pay  the  same,  the  employer  on  account  of  whose  work- 
man it  was  that  the  warrant  was  drawn  shall  pay  the 
same,  and  he  shall  be  credited  upon  his  next  following 
contribution  to  such  fund  the  amount  so  paid  with  in- 
terest thereon  at  the  legal  rate  from  the  date  of  such 
payment  to  the  date  such  next  following  contribution 
became  payable,  and  if  the  amount  of  the  credit  shall 
exceed  the  amount  of  the  contribution,  he  shall  have  a 
warrant  upon  the  same  fund  for  the  excess,  and  if  any 
such  warrant  shall  not  be  so  paid,  it  shall  remain,  never- 
theless, payable  out  of  the  fund.  The  State  Treasurer 
shall  to  such  extent  as  shall  appear  to  him  to  be  advis- 
able keep  the  moneys  of  the  unsegregated  portion  of  the 
accident  fund  invested  at  interest  in  the  class  of  securi- 
ties provided  by  law  for  the  investment  of  the  perma- 
nent school  fund.  The  State  Treasurer  shall  be  liable 
on  his  official  bond  for  the  safe  custody  of  the  moneys 


299  WASHINGTON  ACT.  §  124 

and  securities  of  the  accident  fund,  but  all  the  provisions 
of  an  act  approved  February  21,  1907,  entitled  "An  act 
to  provide  for  State  depositories  and  to  regulate  the 
deposits  of  State  moneys  therein,"  shall  be  applied  to 
said  moneys  and  the  handling  thereof  by  the  State 
Treasurer. 

Opinion  of  Attorney-General:  Where  the  funds  of  a  particular 
class  have  been  depleted  by  payment  of  pensions  and  awards,  to 
such  an  extent  that  there  remains  in  the  fund  an  insufficient  sum 
from  which  to  make  further  monthly  payments,  that  it  is  proper  for 
the  commission  to  approve  vouchers  for  such  further  monthly  pay- 
ments, obtain  warrants  therefor  from  the  state  auditor,  and  deliver 
such  warrants  to  the  persons  entitled;  that  it  is  entirely  proper  for 
the  Industrial  Commission  to  advise  the  state  treasurer  that  the 
funds  of  the  particular  class  are  insufficient  to  pay  the  warrant. 

Sec.  27.  Test  of  Invalidity  of  Act. — If  any  employer 
shall  be  adjudicated  to  be  outside  the  lawful  scope  of  this 
act,  the  act  shall  not  apply  to  him  or  his  workmen,  or 
if  any  workman  shall  be  adjudicated  to  be  outside  the 
lawful  scope  of  this  act  because  of  remoteness  of  his 
work  from  the  hazard  of  his  employer's  work,  any  such 
adjudication  shall  not  impair  the  validity  of  this  act  in 
other  respects,  and  in  every  such  case  an  accounting  in 
accordance  with  the  justice  of  the  case  shall  be  had  of 
moneys  received.  If  the  provisions  of  section  4  of  this 
act  for  the  creation  of  the  accident  fund,  or  the  provi- 
sions of  this  act  making  the  compensation  to  the  work- 
man provided  in  it  exclusive  of  any  other  remedy  on 
the  part  of  the  workman  shall  be  held  invalid  the  entire 
act  shall  be  thereby  invalidated  except  the  provisions  of 
section  31,  and  an  accounting  according  to  the  justice  of 
the  case  shall  be  had  of  moneys  received.  In  other  re- 
spects an  adjudication  of  invalidity  of  any  part  of  this  act 
shall  not  affect  the  validity  of  the  act  as  a  whole  or  any 
other  part  thereof. 

Sec.  28.  Statute  of  Limitations  Saved.— If  the  pro- 
visions of  this  act  relative  to  compensation  for  injuries 
to  or  death  of  workmen  become  invalid  because  of  any 


§  124      WORKMEN'S  COMPENSATION  AND  INSURANCE.      300 

adjudication,  or  be  repealed,  the  period  intervening  be- 
tween the  occurrence  of  an  injury  or  death,  not  previ- 
ously compensated  for  under  this  act  by  lump  payment 
or  completed  monthly  payments,  and  such  repeal  or  the 
rendition  of  the  final  adjudication  of  the  invalidity  shall 
not  be  computed  as  a  part  of  the  time  limited  by  law 
for  the  commencement  of  any  action  relating  to  such 
injury  or  death:  Provided,  That  such  action  be  com- 
menced within  one  year  after  such  repeal  or  adjudica- 
tion ;  but  in  any  such  action  any  sum  paid  out  of  the  acci- 
dent fund  to  the  workman  on  account  of  injury,  to  whom 
the  action  is  prosecuted,  shall  be  taken  into  account  or 
disposed  of  as  follows :  If  the  defendant  employer  shall 
have  paid  without  delinquency  into  the  accident  fund 
the  payment  provided  by  section  4,  such  sums  shall  be 
credited  upon  the  recovery  as  payment  thereon,  other- 
wise the  sum  shall  not  be  so  credited  but  shall  be  de- 
ducted from  the  sum  collected  and  be  paid  into  the  said 
fund  from  which  they  had  been  previously  disbursed. 

Sec.  29.  Appropriations. — There  is  hereby  appro- 
priated out  of  the  State  treasury  the  sum  of  one  hundred 
and  fifty  thousand  dollars,  or  so  much  thereof  as  may 
be  necessary,  to  be  known  as  the  administration  fund, 
out  of  which  the  salaries,  traveling  and  office  expenses 
of  the  department  shall  be  paid,  and  also  all  other  ex- 
penses of  the  administration  of  the  accident  fund;  and 
there  is  hereby  appropriated  out  of  the  accident  fund  for 
the  purpose  to  which  said  fund  is  applicable  the  sum  of 
$1,500,000,  or  so  much  thereof  as  shall  be  necessary  for 
the  purposes  of  this  act. 

Note  by  board — The  law  requires  the  state  to  pay  the  entire  cost 
of  administration  of  the  state  insurance  fund,  leaving  the  whole 
amount  paid  into  such  fund  by  the  employers  to  be  devoted  to  the 
payment  of  awards  for  injuries. 

The  state  can  well  afford  -to  bear  this  expense,  as  its  courts  will 
be  relieved  of  a  large  amount  of  work,  and  the  burden  now  placed 
upon  taxpayers  by  the  trial  of  negligence  cases  will  be  minimized. 
The  tendency  of  this  act  should  be  to  produce  good  will  between 


3OI  WASHINGTON  ACT.  §  124 

employer  and  employg,  and  to  lessen  the  cases  of  hardship  among 
dependents  of  injured  employe's.  In  taking  into  consideration  the 
state's  many  vital  interests  in  the  welfare  of  the  workman  and  his 
family,  the  general  taxpayer  may  well  afford  to  bear  the  expense  of 
administration. 

Sec.  30.  Safeguard  Regulations  Preserved. — Noth- 
ing in  this  act  contained  shall  repeal  any  existing  law 
providing  for  the  installation  or  maintenance  of  any  de- 
vice, means  or  method  for  the  prevention  of  accidents  in 
extra  hazardous  work  or  for  a  penalty  or  punishment  for 
failure  to  install  or  maintain  any  such  protective  device, 
means  or  method,  but  sections  8,  9  and  10  of  the  act  ap- 
proved March  6,  1905,  entitled  "An  act  providing  for  the 
protection  and  health  of  employes  in  factories,  mills  or 
workshops,  where  machinery  is  used,  and  providing  for 
suits  to  recover  damages  sustained  by  the  violation 
thereof,  and  prescribing  a  punishment  for  the  violation 
thereof  and  repealing  an  act  entitled  'An  act  providing 
for  the  protection  of  employes  in  factories,  mills,  or 
workshops  where  machinery  is  used,  and  providing  for 
the  punishment  of  the  violation  thereof,  approved 
March  6,  1903,'  and  repealing  all  other  acts  or  parts  of 
acts  in  conflict  herewith,"  are  hereby  repealed,  except 
as  to  any  cause  of  action  which  shall  have  accrued  there- 
under prior  to  October  1,  1911. 

Note  by  board — The  formation  of  corporate  or  voluntary  asso- 
ciations, by  members  of  the  compulsory  classes  of  employers,  to 
study  methods  and  appliances  for  accident  prevention  and  to  reduce 
the  insurance  cost  under  this  act  is  urged  and  the  co-operation  of 
the  Commission  tendered. 

Sec.  31.  Distribution  of  Funds  in  Case  of  Repeal.— 
If  this  act  shall  be  hereafter  repealed,  all  moneys  which 
are  in  the  accident  fund  at  the  time  of  the  repeal  shall 
be  subject  to  such  disposition  as  may  be  provided  by  the 
legislature,  and  in  default  of  such  legislative  provision 
distribution  thereof  shall  be  in  accordance  with  the  jus- 
tice of  the  matter,  due  regard  being  had  to  obligations 
of  compensation  incurred  and  existing. 


§  125      WORKMEN'S  COMPENSATION  AND  INSURANCE.      302 

Sec.  32.  Saving  Clause. — This  act  shall  not  affect 
any  action  pending  or  cause  of  action  existing  on  the 
30th  day  of  September,  1911. 

§  125.  Proposed  amendment. — The  Washington  In- 
dustrial Insurance  Commission  reports  that  the  experi- 
ence of  the  first  year's  operation  of  the  act  shows  that 
there  is  a  state-wide  and  insistent  demand  that  the 
Washington  Act  be  so  amended  by  the  next  legislature 
as  to  provide  a  First  Aid  Fund  which  shall  care  for  all 
injuries  for  a  period  of,  say  three  weeks.  The  reason  is 
that  experience  shows  that  the  act  in  its  present  form 
does  not  give  the  injured  workmen  in  the  mass  more 
than  about  33  per  cent,  of  the  loss  sustained.  To  meet 
this  situation  the  commission  which  made  the  original 
draft  of  the  present  law  recommended  the  following 
provision  (which  the  last  legislature  refused  to  enact)  : 

The  provision  for  a  First  Aid  Fund  proposed  by  the 
investigating  commission  in  its  draft  of  the  workmen's 
compensation  act,  but  which  provision  the  legislature 
refused  to  enact  into  law,  was  as  follows : 

"Sec.  10.  Creation  of  First  Aid  Fund. — A  fund  is 
hereby  created  in  the  State  treasury  to  be  known  as 
the  First  Aid  Fund.  Into  it  shall  be  paid  by  each  em- 
ployer, on  or  before  the  fifteenth  day  of  November, 
1911,  and  each  month  thereafter,  the  sum  of  four  cents 
for  each  day's  work  or  fraction  thereof  done  by  each 
workman  for  him  during  the  preceding  calendar  month 
or  part  thereof.  Two  cents  of  such  four  cents  shall  be 
deducted  by  the  employer  from  the  pay  of  the  workman. 

Sec.  11.  Disbursements  of  First  Aid  Fund. — Upon 
the  occurrence  of  any  injury  to  a  workman,  he  shall  re- 
ceive from  the  First  Aid  Fund  proper  and  necessary 
medical,  surgical  and  hospital  services  and  compensa- 
tion for  the  period  of  temporary  or  other  disability  in 
the  sum  of  five  dollars  per  week,  for  not  to  exceed  three 
weeks,  payable  at  the  end  of  each  week.  It  shall  be  the 


303  WASHINGTON  ACT.  §  126 

duty  of  the  employer  to  see  to  it  that  immediate  medical 
and  surgical  services  are  rendered,  and  transportation 
to  hospital  provided,  and  all  charges  therefor  shall  be 
audited  and  paid  and  be  payable  only  by  the  department 
out  of  the  First  Aid  Fund." 

§  126.  Constitutionality  of  the  act. — We  give  in 
full  in  the  succeeding  section  the  opinion  of  the  Supreme 
Court  of  Washington,  in  State  v.  Clausen,  117  Pac.  1101, 
which  sustains  the  constitutionality  of  the  Washington 
Act  against  the  objection  that  it  authorized  the  taking 
of  property  without  due  process  of  law,  that  it  operated 
as  a  denial  of  the  equal  protection  of  the  laws,  that  it 
amounted  to  an  inequality  of  taxation  and  that  it  denied 
the  right  of  trial  by  jury. 

The  court  sustained  the  constitutionality  of  the  act  as 
against  the  first  three  objections,  but  did  not  pass  upon 
the  fourth. 

This  opinion  is  of  great  value,  both  on  account  of  the 
court's  discussion  of  many  important  historical,  sociolo- 
gical and  economic  questions  in  connection  with  the 
legal  principles  involved  in  the  enactment  of  a  compul- 
sory workmen's  insurance  law,  and  because  up  to  the 
time  of  the  rendering  of  this  decision,  in  September, 
1911,  no  Supreme  Court  of  any  of  the  States  had  sus- 
tained the  right  of  a  State  legislature  to  enact  a  law  that 
would  create  a  fund  by  taxing  employers  of  specified 
classes  and  making  it  obligatory  upon  the  workmen  em- 
ployed by  the  said  employers  to  accept  specified  compen- 
sations for  personal  injuries  received  in  the  due  course 
of  their  employment.  For  the  right  of  an  injured  work- 
man to  sue  his  employer  is  almost  wholly  eliminated,  ex- 
cepting the  very  restricted  cases  retained  in  sections  6 
and  8  of  the  act. 

§  127.     Opinion  of  the  court. — The  case  of  State  v. 
Clausen1  was  before  the  Supreme  Court  on  the  refu- 
i  65  Wash.  156,  117  Pac.  1101. 


§  127      WORKMEN'S  COMPENSATION  AND  INSURANCE.      304 

sal  of  the  State  auditor  to  issue  a  warrant  on  the  State 
treasurer  for  the  payment  of  furniture  purchased  by  the 
industrial  insurance  department  for  its  office.  The  con- 
tention of  the  auditor  was  that  the  law  creating  the  de- 
partment was  not  constitutional,  and  that  he  had  there- 
fore no  power  to  expend  moneys  of  the  State  in  its  be- 
half. This  contention  the  Supreme  Court  rejected,  and 
after  a  discussion  of  the  various  points  of  objection 
raised  to  the  law  sustained  it  in  all  points.  Owing  to 
the  importance  of  the  decision,  it  is  given  in  full,  to- 
gether with  the  concurring  opinion  of  Judge  Chadwick, 
expressing  his  views  as  to  the  finality  of  the  decision 
under  the  circumstances. 

Having  made  a  statement  of  the  conditions  under 
which  the  case  was  before  the  court,  and  after  present- 
ing a  summary  of  the  law,  Judge  Fullerton,  speaking  for 
the  court,  said: 

The  foregoing  summary  makes  clear  the  theory  and 
purpose  of  the  act.  It  is  founded  on  the  basic  principle 
that  certain  defined  industries,  called  in  the  act  extra 
hazardous,  should  be  made  to  bear  the  financial  losses 
sustained  by  the  workmen  engaged  therein  through  per- 
sonal injuries,  and  its  purpose  is  to  furnish  a  remedy 
that  will  reach  every  injury  sustained  by  a  workman  en^ 
gaged  in  any  of  such  industries,  and  make  a  sure  and 
certain  award  therefor,  bearing  a  just  proportion  to  the 
loss  sustained,  regardless  of  the  manner  in  which  the 
injury  was  received.  With  the  economic  questions  thus 
suggested,  the  auditor's  learned  counsel  object  only  to 
the  wisdom  of  the  scheme  formulated.  They  concede 
that  the  evil  is  one  calling  for  a  remedy,  and  direct  theii 
arguments  solely  against  this  particular  act.  In  om- 
discussion  we  shall  confine  ourselves  to  the  questions 
thus  suggested,  noticing  the  ecenomic  questions  only  in- 
cidentally. 

The  act  is  challenged  as  unconstitutional  on  four 
distinct  grounds:  (1)  That  it  violates  section  3,  oi 


3°5  WASHINGTON  ACT.  §  I2/ 

article  1,  of  the  State  constitution,  and  the  fourteenth 
amendment  to  the  Constitution  of  the  United  States, 
which  provide  that  no  person  shall  be  deprived  of  life, 
liberty,  or  property  without  due  process  of  law;  (2)  that 
it  violates  section  12,  of  article  1,  of  the  State  constitu- 
tion, which  provides  that  no  law  shall  be  passed  granting 
to  any  citizen,  class  of  citizens,  or  corporations,  other 
than  municipal,  privileges  or  immunities  which,  upon  the 
same  terms,  shall  not  equally  belong  to  all  citizens  or 
corporations;  and  the  fourteenth  amendment  to  the 
Constitution  of  the  United  States,  which  provides  for 
the  equal  protection  of  the  laws;  (3)  that  it  violates 
sections  1  and  2,  of  article  7,  of  the«State  constitution, 
which  provide  that  property  shall  be  taxed  according  to 
its  value  in  money  and  that  all  taxation  shall  be  equal 
and  uniform;  and  (4)  that  it  violates  section  21,  of  arti- 
cle 1,  of  the  State  constitution  which  provides  that  the 
right  of  trial  by  jury  shall  remain  inviolate.  But  while 
we  shall  discuss  the  questions  suggested  under  the  sev- 
eral divisions  as  here  set  out,  it  is  obvious  that  no  very 
logical  segregation  of  the  argument  can  be  thus  made, 
as  many  of  the  reasons  advanced  for  or  against  the  act 
under  one  particular  division  are  equally  applicable  to 
one  or  more  of  the  others.  Any  different  arrangement, 
however,  seems  to  be  at  the  sacrifice  of  clearness,  and 
we  pass  therefore  directly  to  the  first  objection  stated. 

It  is  with  regret  that  we  are  unable  to  set  forth  at 
length  counsel's  argument  on  this  branch  of  the  case,  as 
any  abbreviation  of  it  is  at  the  expense  of  its  cogency 
and  force.  To  do  so,  however,  would  unduly  lengthen 
this  opinion.  The  argument  is  based  on  two  funda- 
mental ideas:  The  one,  that  the  act  creates  a  liability 
without  fault;  and  the  other,  that  it  takes  the  property 
of  one  employer  to  pay  the  obligations  of  another.  It 
must  be  conceded  that  these  contentions  have  a  basis 
in  fact,  and  that  they,  on  first  impression,  constitute  a 
persuasive  argument  against  the  validity  of  the  act. 

2Q— BOYD  W  C 


§127      WORKMEN'S  COMPENSATION  AND  INSURANCE.      306 

Since  there  is  exacted  from  every  employer  of  labor  en- 
gaged in  one  or  more  of  the  industries  termed  hazardous 
a  certain  fixed  sum  based  upon  his  payroll,  which  is  to 
be  used  to  compensate  employes  working  in  such  haz- 
ardous employments  who  receive  personal  injuries,  re- 
gardless of  the  question  whether  the  injury  was  because 
of  the  fault  of  the  employer  or  of  the  negligence  of  the 
employe,  it  can  be  said  that  some  part  of  the  sum  so 
collected  will  be  paid  out  on  injuries  in  which  the  em- 
ployer is  without  fault;  and,  furthermore,  since  every 
such  employer  is  liable  to  make  the  payments  whether 
or  not  any  of  his  own  workmen  are  injured,  and  since 
an  employer  is  liable  under  the  common  law  for  an  in- 
jury to  his  own  workmen  only,  it  can  also  be  said  that 
by  this  act  one  employer  is  held  liable  for  the  obligations 
of  another. 

But  these  conditions  do  not  furnish  an  absolute  test 
of  the  validity  of  the  act.  In  the  statute  books  of  the 
several  States  are  many  statutes  held  constitutional  by 
the  courts  where  liability  is  created  without  fault,  and 
where  the  property  of  one  person  is  taken  to  pay  the 
obligations  of  another,  and  this  where  no  compensation 
is  made  to  the  person  who  is  thus  made  liable  or  whose 
property  is  thus  taken,  other  than  perhaps  the  bestowal 
upon  him  of  some  privilege.  The  test  of  the  validity  of 
such  a  law  is  not  found  in  the  inquiry,  Does  it  do  the 
objectionable  things?  but  is  found  rather  in  the  inquiry, 
Is  there  no  reasonable  ground  to  believe  that  the  public 
safety,  health  or  general  welfare  is  promoted  thereby? 
The  legislature  can  not,  of  course,  without  violating  this 
clause  of  the  Constitution,  declare  a  particular  industry, 
commonly  engaged  in  by  the  people,  to  be  unlawful 
which,  under  all  circumstances,  must  necessarily  be 
harmless  and  innocent;  but  it  can  regulate  and  control 
and  prohibit  any  industry,  however  innocent  it  may 
have  been  in  its  inception,  whenever  it  becomes  a  men- 
ace t< %  the  employes  engaged  in  it,  the  people  surround- 


3O7  WASHINGTON  ACT. 

ing  it,  or  to  any  considerable  number  of  the  people  at 
large,  no  matter  from  whatsoever  cause  the  menace  may 
arise.  This  it  does  under  the  police  power:  "the  power 
inherent  in  every  sovereignty  *  *  *  the  power  to 
govern  men  and  things." 

It  is  unnecessary  to  discuss  the  origin,  nature  or  ex- 
tent of  this  power.  It  is  sufficient  to  say  that,  by  means 
of  it,  the  legislature  exercises  a  supervision  over  matters 
affecting  the  common  weal  and  enforces  the  observ- 
ance by  each  individual  member  of  society  of  duties 
which  he  owes  to  others  and  the  community  at  large. 
The  possession  and  enjoyment  of  all  rights  are  subject 
to  this  power.  Under  it  the  State  may  "prescribe  regu- 
lations promoting  the  health,  peace,  morals,  education 
and  good  order  of  the  people,  and  to  legislate  so  as  to 
increase  the  industries  of  the  State,  develop  its  resources 
and  add  to  its  welfare  and  prosperity."  In  fine,  when 
reduced  to  its  ultimate  and  final  analysis,  the  police 
power  is  the  power  to  govern.  It  is  not  meant  here  to 
be  asserted  that  this  power  is  above  the  Constitution, 
or  that  everything  done  in  the  name  of  the  police  power 
is  lawfully  done.  It  is  meant  only  to  be  asserted  that  a 
law  which  interferes  with  personal  and  property  rights 
is  valid  only  when  it  tends  reasonably  to  correct  some 
existing  evil  or  promote  some  interest  of  the  State,  and 
is  not  in  violation  of  any  direct  and  positive  mandate 
of  the  Constitution.  The  clause  of  the  Constitution  now 
under  consideration  was  intended  to  prevent  the  arbi- 
trary exercise  of  power,  or  undue,  unjust,  and  capricious 
interference  with  personal  rights;  not  to  prevent  those 
reasonable  regulations  that  all  must  submit  to  as  a  con- 
dition of  remaining  a  member  of  society.  In  other  words, 
the  test  of  a  police  regulation,  when  measured  by  this 
clause  of  the  Constitution,  is  reasonableness,  as  contra- 
distinguished from  arbitrary  or  capricious  action. 

The  authorities,  as  we  view  them,  abundantly  sup- 
port the  foregoing  principles.  Of  statutes  upheld  by 


§  127      WORKMEN'S  COMPENSATION  AND  INSURANCE.      308 

the  court  which  can  be  said  to  create  liability  without 
fault  and  take  the  property  of  one  person  to  pay  the 
obligations  of  another,  the  most  conspicuous  examples 
are,  perhaps,  sections  4585  and  4803  of  the  Revised 
Statutes  of  the  United  States,  which  provide: 

"Sec.  4585.  There  shall  be  assessed  and  collected  by 
the  collector  of  customs  at  the  ports  of  the  United 
States,  from  the  master  or  owner  of  every  vessel  of  the 
United  States  arriving  from  a  foreign  port,  or  of  every 
registered  vessel  employed  in  the  coasting  trade,  and 
before  such  vessel  shall  be  admitted  to  entry,  the  sum 
of  forty  cents  per  month  for  each  and  every  seaman 
who  shall  have  been  employed  on  such  vessel  since  she 
was  last  entered  at  any  port  of  the  United  States;  such 
sum  such  master  or  owner  may  collect  and  retain  from 
the  wages  of  such  seamen." 

"Sec.  4803.  The  several  collectors  of  the  customs 
shall  respectively  deposit,  without  abatement  or  reduc- 
tion, the  sums  collected  by  them  under  the  provisions  of 
law  imposing  a  tax  upon  seamen  for  hospital  purposes, 
with  the  nearest  depositary  of  public  moneys,  and  shall 
make  returns  of  the  same,  with  proper  vouchers,  month- 
ly, to  the  Secretary  of  the  Treasury,  upon  forms  to  be 
furnished  by  him.  All  such  moneys  shall  be  placed  to 
the  credit  of  'the  fund  for  the  relief  of  sick  and  disabled 
seamen;'  of  which  fund  separate  accounts  shall  be  kept 
in  the  Treasury.  Such  fund  is  appropriated  for  the  ex- 
penses of  the  Marine-Hospital  Service,  and  shall  be  em- 
ployed, under  the  direction  of  the  Secretary  of  the  Treas- 
ury, for  the  care  and  relief  of  sick  and  disabled  seamen 
employed  in  registered,  enrolled,  and  licensed  vessels  of 
the  United  States." 

This  statute  clearly  does  everything  that  is  charged 
against  the  statute  at  bar.  It  creates  liability  without 
fault,  since  it  obligates  the  master  or  owner  of  every 
vessel  of  the  United  States  to  pay  into  a  given  fund, 
controlled  by  the  Government,  a  fixed  sum  for  the 


3°9  WASHINGTON  ACT.  §  I2/ 

benefit  of  sick  and  disabled  seamen,  regardless  of  the 
fact  whether  or  not  the  vessel  of  the  master  or  owner 
making  the  payment  has  any  sick  or  disabled  seamen 
who  take  advantage  of  the  fund;  and  it  takes  the 
property  of  one  to  pay  the  obligations  of  another,  since 
the  fund  is  disbursed  in  the  cure  of  sick  and  disabled 
American  seamen  generally,  regardless  of  the  fact 
whether  or  not  the  expense  of  their  cure  exceeds  the 
sum  paid  in  by  the  master  or  owner  of  the  vessel  from 
which  they  came.  Whatever  may  be  said  as  to  the 
foundation  of  the  liability  of  the  master  or  the  owner  of 
a  vessel,  or  the  vessel  itself,  to  answer  for  the  expenses 
of  the  cure  of  sick  and  disabled  seamen  while  in  service 
on  the  ship,  the  foundation  of  this  liability  is  purely  stat- 
utory; and,  if  the  objection  that  is  made  to  the  present 
statute  were  sufficient  to  condemn  it,  the  statute  is  in 
violation  of  the  fifth  amendment  to  the  Constitution  of 
the  United  States.  The  statute  had  its  inception  in  the 
act  of  Congress  of  July  16,  1798  (1  Stats,  at  Large,  606), 
and  was  on  the  statute  books  for  nearly  100  years,  dur- 
ing which  time  it  was  continuously  enforced.  It  is  true 
our  attention  has  been  called  to  no  case  where  the  stat- 
ute was  directly  attacked ;  but  there  are  numerous  cases 
in  which  it  has  been  specifically  mentioned  and  given 
force,  and  it  would  seem  that,  if  it  were  thought  inimi- 
cal to  the  Constitution,  it  would  not  have  escaped  the  at- 
tention of  the  astute  counsel  whose  client's  interests 
were  adversely  affected  by  it.  (Buckley  v.  Brown,  Fed. 
Case,  No.  2092;  Reed  v.  Canfield,  Fed.  Case,  No.  11641; 
Peterson  v.  The  Chandos,  4  Fed.  645;  Holt  v.  Cum- 
mings,  102  Pa.  St.  212,  48  Am.  Rep.  199.  See,  also,  3 
Opinions  of  Attorneys  General  (U.  S.)  683;  13  Opinions 
of  Attorneys  General  (U.  S.)  330.) 

Statutes  making  railroad  corporations  absolutely  lia- 
ble, without  regard  to  negligence,  for  injuries  to  prop- 
erty caused  by  fires  escaping  from  their  locomotive  en- 
gines, are  clearly  statutes  creating  liability  without  fault, 


§127      WORKMEN'S  COMPENSATION  AND  INSURANCE.      310 

yet  these  statutes  have  been  upheld  by  all  the  courts  of 
the  States  in  which  they  have  been  enacted,  as  well  as 
by  the  Supreme  Court  of  the  United  States.  (Chapman 
v.  Atlantic  &  St.  Lawrence  R.  Co.,  37  Me.  92;  Sherman 
v.  Maine  Cent.  R.  Co.,  86  Me.  422,  30  Atl.  69 ;  Hooksett 
v.  Concord  R.,  38  N.  H.  242;  Smith  v.  Boston  &  Maine 
R.,  63  N.  H.  25;  Lyman  v.  Boston  &  Worcester  R. 
Corp.,  4  Cush.  288;  Pierce  v.  Worcester  &  Nashua  R. 
Co.,  105  Mass.  199;  Rodemacher  v.  Milwaukee  &  St.  P. 
R.  Co.,  41  Iowa  297,  20  Am.  Rep.  592 ;  Mathews  v.  St. 
Louis  &  San  Francisco  R.  Co.,  121  Mo.  298,  24  S.  W. 
591,  25  L.  R.  A.  161 ;  Emerson  v.  Gardiner,  8  Kans.  452; 
Jensen  v.  South  Dakota  Cent.  R.  Co.,  25  S.  Dak.  506,  127 
N.  W.  650;  St.  Louis  &  San  Francisco  R.  Co.  v.  Math- 
ews, 165  U.  S.  1 ;  Atchison,  T.  &  S.  F.  R.  Co.  v.  Mat- 
thews, 174  U.  S.  96.) 

Other  statutes  are  those  providing  that  any  landlord 
who  knowingly  leases  his  premises  for  saloon  purposes 
shall  be  liable  for  losses  resulting  from  intoxication 
caused  by  the  sale  of  liquor  by  his  lessee.  Such  a  stat- 
ute was  formerly  in  force  in  this  State,  and  was  given 
effect  by  this  court.  (Delfel  v.  Hanson,  2  Wash.  194, 
26  Pac.  220;  Burkman  v.  Jamieson,  25  Wash.  606,  66 
Pac.  48.)  And  in  Bertholf  v.  O'Reilly,  74  N.  Y.  509,  30 
Am.  Rep.  323,  the  constitutionality  of  a  like  statute  was 
maintained  in  an  opinion  by  Judge  Andrews,  renowned 
for  his  ability  and  learning.  In  the  course  of  his  opinion 
the  learned  judge  noted  the  fact  that  the  liability  of  the 
landlord  could  not  be  sustained  on  the  theory  that  such 
liability  was  a  condition  of  a  privilege  granted  by  the 
statute,  but  rested  the  decision  on  the  principle  that  the 
State,  under  its  police  power,  could  impose  upon  the 
landlord  liability  for  the  acts  of  his  tenants.  In  the 
course  of  the  opinion  this  language  was  used : 

"And  the  act  of  1873  is  not  invalid  because  it  creates 
a  right  of  action  and  imposes  a  liability  not  known  to 
the  common  law.  There  is  not  such  limit  to  legislative 


311  WASHINGTON  ACT.  §  I2/ 

power.  The  legislature  may  alter  or  repeal  the  common 
law.  It  may  create  new  offenses,  enlarge  the  scope  of 
civil  remedies,  and  fasten  responsibility  for  injuries  upon 
persons  against  whom  the  common  law  gives  no 
remedy.  We  do  not  mean  that  the  legislature  may  im- 
pose upon  one  man  liability  for  an  injury  suffered  by 
another,  with  which  he  had  no  connection.  But  it  may 
change  the  rule  of  the  common  law,  which  looks  only 
to  the  proximate  cause  of  the  mischief,  in  attaching  legal 
responsibility,  and  allow  a  recovery  to  be  had  against 
those  whose  acts  contributed,  although  remotely,  to 
produce  it.  *  *  * 

"The  liability  imposed  upon  the  landlord  for  the  acts 
of  the  tenant  is  not  a  new  principle  in  legislation.  His 
liability  only  arises  when  he  has  consented  that  the 
premises  may  be  used  as  a  place  for  the  sale  of  liquors. 
He  selects  the  tenant,  and  he  may,  without  violating 
any  constitutional  provision,  be  made  responsible  for 
the  tenant's  acts,  connected  with  the  use  of  the  leased 
property." 

Statutes  imposing  a  liability  upon  fire  insurance 
agents,  based  upon  the  amount  of  the  insurance  effected 
by  them,  for  the  benefit  of  a  fund  to  care  for  and  cure 
sick  and  injured  firemen,  have  been  upheld  in  the  States 
of  New  York  and  Illinois.  (Fire  Department  v.  Noble, 
3  E.  D.  Smith  (N.  Y.)  440;  Fire  Department  v.  Wright, 
3  E.  D.  Smith  (N.  Y.)  453;  Exempt  Fireman's  Fund  v. 
Roome,  29  Hun  391,  394;  Firemens  Benevolent  Ass'n 
v.  Lounsbury,  21  111.  511,  74  Ann.  Dec.  115.)  Clearly 
these  are  statutes  creating  liability  without  fault.  A 
similar  statute  relating  to  agents  of  foreign  fire  insur- 
ance companies  was  upheld  in  Wisconsin.  (Fire  De- 
partment v.  Helfenstein,  16  Wis.  136.) 

The  statute  of  Nebraska  makes  a  railroad  company 
liable  in  damages  for  injuries  sustained  by  a  passenger 
regardless  of  the  question  of  negligence  on  the  part  of 
the  company,  except  where  the  injury  is  caused  by  the 


§127      WORKMEN'S  COMPENSATION  AND  INSURANCE.      312 

passenger's  criminal  negligence,  or  by  his  violation  of 
some  express  rule  of  the  company,  actually  brought  to 
his  attention.  This  statute  was  upheld  against  a  chal- 
lenge on  the  ground  that  it  violated  the  due  process  of 
law  clauses  of  the  State  and  Federal  constitutions,  by 
the  State  court,  in  Chicago,  R.  L,  etc.,  R.  Co.  v.  Zernecke, 
59  Nebr.  689,  82  N.  W.  26,  55  L.  R.  A.  610,  and  by  the 
Supreme  Court  of  the  United  States  in  Chicago,  R.  L, 
etc.,  R.  Co.  v.  Zernecke,  183  U.  S.  582.  The  Supreme 
Court  of  the  United  States,  vindicating  the  statute 
against  the  attack  made  upon  it,  used  the  following  lan- 
guage : 

"In  Omaha  &  R.  V.  R.  Co.  v.  Chollette,  33  Nebr.  143, 
the  words  of  the  statute  exempting  railroad  companies 
from  liability,  'where  the  injury  done  'arose  from  the 
criminal  negligence  of  the  persons  injured,'  were  defined 
to  mean  'gross  negligence,'  'such  negligence  as  would 
amount  to  a  flagrant  and  reckless  disregard'  by  the 
passenger  of  his  own  safety,  and  amount  to  a  'willful  in- 
difference to  the  injury  liable  to  follow.'  This  definition 
was  approved  in  subsequent  cases.  It  was  also  approved 
in  the  case  at  bar,  and  the  plaintiff  in  error,  it  was  in 
effect  declared,  was  precluded  from  any  defense  but  that 
of  negligence  as  defined,  or  that  the  injury  resulted  from 
the  violation  of  some  rule  of  the  company  by  the  pas- 
senger brought  to  his  actual  notice,  and  the  company,  as 
we  have  said,  was  not  permitted  to  introduce  evidence 
that  the  derailment  of  its  train  was  caused  by  the  felo- 
nious act  of  a  third  person.  The  statute,  thus  inter- 
preted and  enforced,  it  is  asserted,  impairs  the  constitu- 
tional rights  of  plaintiff  in  error.  The  specific  conten- 
tion is  that  the  company  is  deprived  of  its  defense,  and 
not  only  declared  guilty  of  negligence  and  wrongdoing 
without  a  hearing,  but,  adjudged  to  suffer  without 
wrongdoing,  indeed  even  for  the  crimes  of  others,  which 
the  company  could  not  have  foreseen  or  have  prevented. 

"Thus   described,   the   statute   seems   objectionable. 


3J3  WASHINGTON  ACT.  §  127 

Regarded  as  extending  the  rule  of  liability  for  injury  to 
persons  which  the  common  law  makes  for  the  loss  of  or 
injury  to  things,  the  statute  seems  defensible.  And  it 
was  upon  this  ground  that  the  Supreme  Court  of  the 
State  defended  and  vindicated  the  statute.  The  court 
said: 

'The  legislation  is  justifiable  under  the  police  power 
of  the  State,  so  it  has  been  held.  It  was  enacted  to  make 
railroad  companies  insurers  of  the  safe  transportation  of 
their  passengers  as  they  were  of  baggage  and  freight; 
and  no  good  reason  is  suggested  why  a  railroad  com- 
pany should  be  released  from  liability  for  injuries  re- 
ceived by  a  passenger  while  being  transported  over  its 
line,  while  the  corporation  must  respond  for  any  dam- 
ages to  his  baggage  or  freight.' 

"Our  jurisprudence  affords  examples  of  legal  liability 
without  fault,  and  the  deprivation  of  property  without 
fault  being  attributable  to  its  owner.  The  law  of  deo- 
dands  was  such  an  example.  The  personification  of  the 
ship  in  admiralty  law  is  another.  Other  examples  are 
afforded  in  the  liability  of  the  husband  for  the  torts  of 
the  wife — the  liability  of  a  master  for  the  acts  of  his 
servants. 

"In  Missouri  Railway  Co.  v.  Mackey,  127  U.  S.  205, 
a  statute  of  Kansas  abrogating  the  common  law  rule 
exempting  a  master  from  liability  to  a  servant  for  the 
negligence  of  a  fellow-servant,  was  sustained  against  the 
contention  that  such  statute  violated  the  fourteenth 
amendment  of  the  Constitution  of  the  United  States. 
And  in  Minneapolis,  etc.,  Railway  Co.  v.  Herrick,  127  U. 
S.  210,  a  statute  of  Iowa  which  extended  liability  for 
the  'willful  wrongs,  whether  of  commission  or  omission,' 
of  the  'agents,  engineers  or  other  employes'  of  railroad 
companies,  was  vindicated  against  the  double  attack  of 
being  an  unjust  discrimination  against  railroad  corpora- 
tions and  the  deprivation  of  property  without  due  pro- 
cess of  law." 

The  latest  illustration  of  such  a  statute  is  found  in  the 


§  127      WORKMEN'S  COMPENSATION  AND  INSURANCE.      314 

Oklahoma  depositors  guaranty  law,  which  authorizes 
the  assessment  and  collection  of  a  certain  per  centum  on 
the  daily  average  deposit  of  each  and  every  bank  organ- 
ized under  the  laws  of  the  State  as  a  fund  to  pay  the 
losses  caused  depositors  by  failing  and  insolvent  banks. 
This  act  was  challenged  in  the  State  court  on  the  ground 
that  it  violated  the  fourteenth  amendment  to  the  Con- 
stitution of  the  United  States,  and  the  due  process  of 
law  clause  of  the  State  constitution;  but  was  upheld  by 
the  State  court,  and  on  writ  of  error  to  the  Supreme 
Court  of  the  United  States,  the  judgment  of  the  State 
court  was  affirmed.  (Noble  State  Bank  v.  Haskell,  22 
Okl.  48,  97  Pac.  590;  Noble  State  Bank  v.  Haskell,  219 
U.  S.  104.)  Answering  the  objection  that  the  act  takes 
private  property  for  a  private  use,  and  creates  a  liability 
without  fault,  the  Supreme  Court  of  the  United  States 
said: 

"The  substance  of  the  plaintiff's  argument  is  that  the 
assessment  takes  private  property  for  private  use  with- 
out compensation.  And  while  we  should  assume  that 
the  plaintiff  would  retain  a  reversionary  interest  in  its 
contribution  to  the  fund  so  as  to  be  entitled  to  a  return 
of  what  remained  of  it  if  the  purpose  were  given  up  (see 
Receiver  of  Danby  Bank  v.  State  Treasurer,  39  Vt.  92, 
98),  still  there  is  no  denying  that  by  this  law  a  portion 
of  its  property  might  be  taken  without  return  to  pay 
debts  of  a  failing  rival  in  business.  Nevertheless,  not- 
withstanding the  logical  form  of  the  objection,  there  are 
more  powerful  considerations  on  the  other  side.  In  the 
first  place  it  is  established  by  a  series  of  cases  that  an 
ulterior  public  advantage  may  justify  a  comparatively 
insignificant  taking  of  private  property  for  what,  in  its 
immediate  purpose,  is  a  private  use.  (Clark  v.  Nash, 
198  U.  S.  361 ;  Strickley  v.  Highland  Boy  Mining  Co., 
200  U.  S.  527,  361 ;  Orneld  v.  New  York,  New  Haven  & 
Hartford  R.  R.  Co.,  203  U.  S.  372;  Bacon  v.  Walker,  204 
U.  S.  311,  315.)  And  in  the  next,  it  would  seem  that 


3J5  WASHINGTON  ACT.  §  127 

there  may  be  other  cases  besides  the  every  day  one  of 
taxation,  in  which  the  share  of  each  party  in  the  benefit 
of  a  scheme  of  mutual  protection  is  sufficient  compensa- 
tion for  the  correlative  burden  that  it  is  compelled  to 
assume.  (See  Ohio  Oil  Co.  v.  Indiana,  177  U.  S.  190.) 
At  least,  if  we  have  a  case  within  the  reasonable  exercise 
of  the  police  power  as  above  explained,  no  more  need  be 
said." 

Illustrations  of  the  nature  and  all-pervading  extent  of 
the  police  power  are  shown  somewhat  in  the  cases  al- 
ready cited.  Other  illustrations  abound  almost  without 
number  in  the  decisions  of  the  State  and  Federal  courts. 
It  will  be  sufficient  for  our  purposes,  however,  to  call  at- 
tention to  a  few  of  those  which  most  clearly,  as  we  be- 
lieve, illustrate  the  doctrine.  In  Lawton  v.  Steele,  152 
U.  S.  133,  the  court  used  this  language: 

"The  extent  and  limits  of  what  is  known  as  the  police 
power  have  been  a  fruitful  subject  of  discussion  in  the 
appellate  courts  of  nearly  every  State  in  the  Union.  It 
is  universally  conceded  to  include  everything  essential 
to  the  public  safety,  health,  and  morals,  and  to  justify 
the  destruction  or  abatement,  by  summary  proceedings, 
of  whatever  may  be  regarded  as  a  public  nuisance. 
Under  this  power  it  has  been  held  that  the  State  may 
order  the  destruction  of  a  house  falling  to  decay  or 
otherwise  endangering  the  lives  of  passersby;  the  demo- 
lition of  such  as  are  in  the  path  of  a  conflagration;  the 
slaughter  of  diseased  cattle ;  the  destruction  of  decayed 
or  unwholesome  food ;  the  prohibition  of  wooden  build- 
ings in  cities ;  the  regulation  of  railways  and  other  means 
of  public  conveyance,  and  of  interments  in  burial 
grounds;  the  restriction  of  objectionable  trades  to  cer- 
tain localities;  the  compulsory  vaccination  of  children; 
the  confinement  of  the  insane  or  those  afflicted  with  con- 
tagious diseases;  the  restraint  of  vagrants,  beggars,  and 
habitual  drunkards;  the  suppression  of  obscene  publica- 
tions and  houses  of  ill  fame;  and  the  prohibition  of 


§127      WORKMEN'S  COMPENSATION  AND  INSURANCE.      316 

gambling1  houses  and  places  where  intoxicating  liquors 
are  sold.  Beyond  this,  however,  the  State  may  inter- 
fere wherever  the  public  interests  demand  it,  and  in  this 
particular  a  large  discretion  is  necessarily  vested  in  the 
legislature  to  determine,  not  only  what  the  interests  of 
the  public  require,  but  what  measures  are  necessary  for 
the  protection  of  such  interests." 

Again,  in  Holden  v.  Hardy,  169  U.  S.  366,  it  was  said: 
"An  examination  of  both  these  classes  of  cases  under 
the   fourteenth   amendment  will   demonstrate   that,   in 
passing  upon  the  validity  of  State  legislation  under  that 
amendment,  this  court  has  not  failed  to  recognize  the 
fact  that  the  law  is,  to  a  certain  extent,  a  progressive 
science;  that  in  some  of  the  States  methods  of  proced- 
ure, which  at  the  time  the  constitution  was  adopted 
were  deemed  essential  to  the  protection  and  safety  of 
the  people,  or  to  the  liberty  of  the  citizen,  have  been 
found  to  be  no  longer  necessary;  that  restrictions  which 
had  formerly  been  laid  upon  the  conduct  of  individuals, 
or  of  classes  of  individuals,  had  proved  detrimental  to 
their  interests;  while,  upon  the  other  hand,  certain  other 
classes  of  persons,  particularly  those  engaged  in  danger- 
ous or  unhealthful  employments,  have  been  found  to  be 
in  need  of  additional  protection.     Even  before  the  adop- 
tion of  the  constitution,  much  had  been  done  toward 
mitigating  the  severity  of  the  common  law,  particularly 
in  the  administration  of  its  criminal  branch.     The  num- 
ber of  capital  crimes,  in  this  country  at  least,  had  been 
largely  decreased.     Trial  by  ordeal  and  by  battle  had 
never  existed  here,  and  had  fallen  into  disuse  in  Eng- 
land.    The  earlier  practice  of  the  common  law,  which 
denied  the  benefit  of  witnesses  to  a  person  accused  of 
felony,  had  been  abolished  by  statute,  though  so  far  as 
it  deprived  him  of  the  assistance  of  counsel  and  com- 
pulsory process  for  the  attendance  of  his  witnesses,  it 
had  not  been  changed  in  England.     But  to  the  credit  of 


317  WASHINGTON  ACT. 

her  American  colonies,  let  it  be  said  that  so  oppressive 
a  doctrine  had  never  obtained  a  foothold  there. 

"The  present  century  has  originated  legal  reforms  of 
no  less  importance.  The  whole  fabric  of  special  plead- 
ing, once  thought  to  be  necessary  to  the  elimination  of 
the  real  issue  between  the  parties,  has  crumbled  to 
pieces.  The  ancient  tenures  of  real  estate  have  been 
largely  swept  away,  and  land  is  now  transferred  almost 
as  easily  and  cheaply  as  personal  property.  Married 
women  have  been  emancipated  from  the  control  of  their 
husbands  and  placed  upon  a  practical  equality  with  them 
with  respect  to  the  acquisition,  possession  and  transmis- 
sion of  property.  Imprisonment  for  debt  has  been  abol- 
ished. Exemptions  from  execution  have  been  largely 
added  to,  and  in  most  of  the  States  homesteads  are  ren- 
dered incapable  of  seizure  and  sale  upon  forced  process. 
Witnesses  are  no  longer  incompetent  by  reason  of  inter- 
est, even  though  they  be  parties  to  the  litigation.  In- 
dictments have  been  simplified,  and  an  indictment  for 
the  most  serious  of  crimes  is  now  the  simplest  of  all. 
In  several  of  the  States  grand  juries,  formerly  the  only 
safeguard  against  a  malicious  prosecution,  have  been 
largely  abolished,  and  in  others  the  rule  of  unanimity,  so 
far  as  applied  to  civil  cases,  has  given  way  to  verdicts 
rendered  by  a  three-fourths  majority.  This  case  does 
not  call  for  an  expression  of  opinion  as  to  wisdom  of 
these  changes,  or  their  validity  under  the  fourteenth 
amendment,  although  the  substitution  of  prosecution  by 
information  in  lieu  of  indictment  was  recognized  as  valid 
in  Hurtado  v.  California,  110  U.  S.  516.  They  are  men- 
tioned only  for  the  purpose  of  calling  attention  to  the 
probability  that  other  changes  of  no  less  importance 
may  be  made  in  the  future,  and  that  while  the  cardinal 
principles  of  justice  are  immutable,  the  methods  by 
which  justice  is  administered  are  subject  to  constant 
fluctuation,  and  that  the  Constitution  of  the  United 
States,  which  is  necessarily  and  to  a  large  extent  in- 


§127      WORKMEN'S  COMPENSATION  AND  INSURANCE.      318 

flexible  and  exceedingly  difficult  of  amendment,  should 
not  be  so  construed  as  to  deprive  the  States  of  the  power 
to  so  amend  their  laws  as  to  make  them  conform  to  the 
wishes  of  the  citizens  as  they  may  deem  best  for  the  pub- 
lic welfare  without  bringing  them  into  conflict  with  the 
supreme  law  of  the  land." 

So,  in  Noble  State  Bank  v.  Haskell,  supra,  Mr.  Jus- 
tice Holmes  said: 

"It  may  be  said  in  a  general  way  that  the  police 
power  extends  to  all  the  great  public  needs.  (Canfield 
v.  United  States,  167  U.  S.  518.)  It  may  be  put  forth 
in  aid  of  what  is  sanctioned  by  usage,  or  held  by  the  pre- 
vailing morality  or  strong  and  preponderant  opinion 
to  be  greatly  and  immediately  necessary  to  the  public 
welfare.  Among  matters  of  that  sort  probably  few 
would  doubt  that  both  usage  and  preponderant  opinion 
give  their  sanction  to  enforcing  the  primary  conditions 
of  successful  commerce.  One  of  those  conditions  at  the 
present  time  is  the  possibility  of  payment  by  checks 
drawn  against  bank  deposits,  to  such  an  extent  do  checks 
replace  currency  in  daily  business.  If  then  the  legis- 
lature of  the  State  thinks  that  the  public  welfare  re- 
quires the  measure  under  consideration,  analogy  and 
principle  are  in  favor  of  the  power  to  enact  it.  Even  the 
primary  object  of  the  required  assessment  is  not  a  pri- 
vate benefit  as  it  was  in  the  cases  above  cited  of  a  ditch 
for  irrigation  or  a  railway  to  a  mine,  but  it  is  to  make 
the  currency  of  checks  secure,  and  by  the  same  stroke 
to  make  safe  the  almost  compulsory  resort  of  depositors 
to  banks  as  the  only  available  means  for  keeping  money 
on  hand.  The  priority  of  claim  given  to  depositors  is 
incidental  to  the  same  object  and  is  justified  in  the  same 
way.  The  power  to  restrict  liberty  by  fixing  a  minimum 
of  capital  required  of  those  who  would  engage  in  bank- 
ing is  not  denied.  The  power  to  restrict  investments  to 
securities  regarded  as  relatively  safe  seems  equally 
plain.  It  has  been  held,  we  do  not  doubt  rightly,  that 


3T9  WASHINGTON  ACT.  §  127 

inspections  may  be  required  and  the  cost  thrown  on  the 
bank.  (See  Charlotte,  Columbia  &  Augusta  R.  R.  Co. 
v.  Gibbes,  142  U.  S.  386.)  The  power  to  compel,  be- 
forehand, co-operation,  and  thus,  it  is  believed,  to  make 
a  failure  unlikely  and  a  general  panic  almost  impossible, 
must  be  recognized,  if  government  is  to  do  its  proper 
work,  unless  we  can  say  that  the  means  have  no  reason- 
able relation  to  the  end.  (Gundling  v.  Chicago,  177  U. 
S.  183,  188.)  So  far  is  that  from  being  the  case  that  the 
device  is  a  familiar  one.  It  was  adopted  by  some  States 
the  better  part  of  a  century  ago,  and  seems  never  to 
have  been  questioned  until  now.  (Receiver  of  Danby 
Bank  v.  State  Treasurer,  39  Vt.  92;  People  v.  Walker, 
17  N.  Y.  502.)  Recent  cases  going  not  less  far  are 
Lemieux  v.  Young,  211  U.  S.  489,  496;  Kidd,  Dater  and 
Price  Co.  v.  Musselman  Grocer  Co.,  217  U.  S.  461. 

"It  is  asked  whether  the  State  could  require  all  cor- 
porations or  all  grocers  to  help  to  guarantee  each  other's 
solvency,  and  where  we  are  going  to  draw  the  line.  But 
the  last  is  a  futile  question,  and  we  will  answer  the 
others  when  they  arise.  With  regard  to  the  police 
power,  as  elsewhere  in  the  law,  lines  are  pricked  out  by 
the  gradual  approach  and  contact  of  decisions  on  the 
opposing  sides.  (Hudson  County  Water  Co.  v.  Mc- 
Carter,  209  U.  S.  349,  355.)  It  will  serve  as  a  datum  on 
this  side,  that  in  our  opinion  the  statute  before  us  is 
well  within  the  State's  constitutional  power,  while  the 
use  of  the  public  credit  on  a  large  scale  to  help  individ- 
uals in  business  has  been  held  to  be  beyond  the  line. 
(Loan  Association  v.  Topeka,  20  Wall.  655;  Lowell  v. 
Boston,  111  Mass.  454.)" 

It  is  argued,  however,  that  the  statutes  above  re- 
ferred to  can  be  supported  on  principles  not  applicable 
to  the  statute  before  us.  First,  it  is  said  that  the  statutes 
creating  absolute  liability  on  railroad  companies  for 
losses  caused  by  fires  from  their  locomotive  engines  are 
in  themselves  but  a  return  to  the  common  law  as  it 


§127      WORKMEN'S  COMPENSATION  AND  INSURANCE.      320 

originally  existed.     But  this  does  not  meet  the  objec- 
tion.    At  the  time  the  common  law  became  a  rule  of 
action  for  the  American  States,  the  doctrine  that  negli- 
gence or  fault  of  some  kind  was  a  necessary  element  of 
liability  was  as  firmly  embedded  in  it  as  was  any  other 
of  its  tenets,  and  to  create  liability  regardless  of  negli- 
gence is  now  as  fundamental  a  change  in  the  common 
law  as  it  would  be  had  the  rule  always  remained  as  it 
now  is.     Again,   it  is  said  that  the   right  to  use  the 
agencies  of  fire  and  steam  in  the  movement  of  trains  is 
derived  from  legislation  by  the  State,  and  the  State  can, 
for  that  reason,  prescribe  such  limitations  upon,  and  an- 
nex such  conditions  to,  its  use  as  it  may  deem  fit  and 
necessary  to  protect  from  injury  those  who  come  in 
contact  with  it.     But  the  premise  here  assumed  is  not 
strictly  accurate.     The  use  of  fire  and  steam  to  propel 
trains  is  not  in  itself  unlawful.     On  the  contrary,  it  is  as 
much  a  natural  right  as  is  the  right  to  propel  them  by 
any  other  means  or  to  engage  in  any  other  lawful  enter- 
prise.    Hence,  the  power  to  regulate  and  interfere  with 
the  right  must  come  from  some  source  other  than  the 
inherent  unlawfulness  of  the  act  itself..    It  is  not  meant 
to  be  said,  of  course,  that  the  State,  when  it  grants  a 
charter  to  a  railroad  company  empowering  it  to  con- 
struct and  operate  a  railroad  within  its  boundaries,  may 
not  annex  to  the  charter  such  conditions  as  it  pleases. 
But  that  is  not  the  question  here.     The  question  is, 
whence  comes  the  power  to  impose  these  additional  bur- 
dens upon  a  railroad  corporation  by  legislative  fiat  after 
it  has  received  its  charter  and  has  constructed  and  is 
operating  its  road  thereunder?     Unless  the  constitution 
or  the  act  granting  the  charter  itself  expressly  reserves 
such  right,  the  legislature  can  not  materially  change  the 
charters  of  railroad  companies  after  it  has  once  granted 
them.  The  power  to  annex  additional  conditions  thereto 
must  therefore  be  found  in  some  other  power  than  the 
one  here  alluded  to.     Then,  again,  it  is  said  with  refer- 


321  WASHINGTON  ACT.   "  §  1 27 

ence  to  these  and  the  bank  guaranty  statutes,  that  the 
corporations  named  therein  are  affected  with  a  public 
interest,  and  that  this  fact  renders  them  subject  to  regu- 
lations that   they  would  not  otherwise  be   subject  to. 
But  again,  we  say  that  the  legislature,  because  of  this 
public  interest,  may  be  warranted  in  imposing  such  a 
condition  as  a  precedent  right  to  engage  in  the  business 
of  railroading  or  banking,  but  it  furnishes  no  reason  for 
imposing  additional  conditions  after  the  business  has 
been  entered  upon  with  the  consent  of  the  State.     The 
property  of  such  institutions  is  private  property,  and  its 
ownership  is  as  secure  and  free  from  arbitrary  exactions 
as  is  the  property  invested  in  enterprises  of  a  more  pri- 
vate nature.     Of  the  statutes  making  the  landlord  liable 
for  damages  caused  by  the  sale  of  intoxicating  liquors 
by  his  tenant,  it  is  said  that  the  traffic  is  unlawful  in 
itself;  that  "whisky  is  an  outlaw,"  and  hence  the  legis- 
lature, if  it  permits  its  sale  at  all,  may  prescribe  the  terms 
upon  which  sales  shall  be  made.     But  here  again  the  as- 
sumption is  not  in  accord  with  the  fact.     The  sale  of 
liquor  was  not  unlawful  at  common  law.     On  the  con- 
trary it  has  been  said  by  as  high  an  authority  as  the 
Supreme   Court  of  the  United  States  that  the  State 
could  no  more  exclude  "its  importation  and  sale  in  orig- 
inal packages  without  the  consent  of  Congress  than  it 
could  exclude  the  sugar  of  Louisiana,  the  cotton  of 
South  Carolina,  the  wines  of  California,  the  hops  of 
Washington,  the  tobacco  of  Maryland  and  Connecticut, 
or  the  products  natural  or  manufactured  of  any  State." 
(Lyng  v.  Michigan,  135  U.  S.  161.)  It  refused  to  classify 
intoxicating  liquors  with  rags  or  other  goods  infected 
with  disease,  or  with  cattle  or  meat  or  other  provisions 
which  from  their  condition  are  unfit  for  human  use  or 
consumption;  as  it  was  conceded  that  the  State  could 
prohibit  the  importation  and  use  of  these  in  any  form, 
with  or  without  the  consent  of  Congress.     It  seems  to 
us,  therefore,  that  it  can  not  be  successfully  controverted 

21— BOTD  W  C 


§  127     WORKMEN'S  COMPENSATION  AND  INSURANCE.      '322 

that  all  of  these  statutes  rest  upon  the  same  basic  prin- 
ciple on  which  the  statute  at  bar  rests;  that  is  to  say, 
they  have  their  foundation  in  the  police  power  of  the 
State. 

Nor  is  it  sufficient  to  exclude  the  industries  men- 
tioned in  the  act  before  us  from  the  operation  of  these 
principles  to  say  that  they  are  lawful  callings,  not  sub- 
ject to  absolute  prohibition.     As  we  have  said  in  another 
place,  lawful  trades  and  businesses,  although  private  in 
their  nature,  are  subject  to  the  police  power,  and  may 
be  controlled  and  regulated  under  it  whenever  the  wel- 
fare of  the  State  requires  it.     This  is  well  illustrated  by 
the  laws  of  our  own  State.     For  example,  the  statute  re- 
quiring employers  of  labor  to  pay  their  employes   in 
lawful  money;  the  statute  requiring  employers  of  female 
help  in  stores  or  offices  to  provide  each  of  them  with  a 
chair  or  stool  on  which  to  rest  when  their  duties  permit; 
the  statute  prohibiting  the  employment  of  females  in 
any  mechanical  or  mercantile   establishment,   laundry, 
hotel  or  restaurant,  for  more  than  10  hours  in  any  one 
day;  the  statute  limiting  the  number  of  hours  an  em- 
ploye will  be  permitted  in  any  one  day  to  work  under- 
ground in  a  coal  mine;  the  statute  requiring  machinery 
in  factories,   mills  and  workshop,  the   openings   of  all 
hoistways,  hatchways,  elevators  and  well  holes,  to  be 
guarded;  the  statute  appointing  a  commissioner  of  labor, 
and  empowering  him  to  inspect  mills  and  factories  and 
charge  the  cost  thereof  to  the  mill  or  factory  inspected, 
are  all  statutes  regulating  lawful  trades  or  businesses 
not  affected  with  public  interests;  yet  each  and  all  of 
them  have  been  upheld  and  enforced  in  a  long  line  of 
cases  by  this  court.     (State  v.  Buchanan,  29  Wash.  602, 
70  Pac.  52,  92  Am.  St.  930,  59  L.  R.  A.  342;  Kirkham  v. 
Wheeler-Osgood    Co.,    39   Wash.    415,    81    Pac.    869; 
Shortall  v.   Puget  Sound  Bridge  &  Dredging  Co.,  45 
Wash.  290,  88  Pac.  212;  Hall  v.  West  &  Slade  Mill  Co., 


323  WASHINGTON  ACT.  §  1 27 

39  Wash.  447,  81  Pac.  915 ;  Whelan  v.  Washington  Lum- 
ber Co.,  41  Wash.  153,  83  Pac.  98,  111  Am.  St.  1006.) 

The  Supreme  Court  of  the  United  States  in  Sentell 
v.  New  Orleans,  etc.,  R.  Co.,  166  U.  S.  698,  speaking  of 
the  power  of  the  State  to  interfere  with  private  prop- 
erty, used  this  language: 

"That  a  State,  in  a  bona  fide  exercise  of  its  police 
power,  may  interfere  with  private  property,  and  even 
order  its  destruction,  is  as  well  settled  as  any  legislative 
power  can  be,  which  has  for  its  objects  the  welfare  and 
comfort  of  the  citizen.  For  instance,  meats,  fruits  and 
vegetables  do  not  cease  to  become  private  property  by 
their  decay;  but  it  is  clearly  within  the  power  of  the 
State  to  order  their  destruction  in  times  of  epidemic,  or 
whenever  they  are  so  exposed  as  to  be  deleterious  to  the 
public  health.  There  is  also  property  in  rags  and  cloth- 
ing; but  that  does  not  stand  in  the  way  of  their  destruc- 
tion in  case  they  become  infected  and  dangerous  to  the 
public  health.  No  property  is  more  sacred  than  one's 
home,  and  yet  a  house  may  be  pulled  down  or  blown  up 
by  the  public  authorities,  if  necessary  to  avert  or  stay  a 
general  conflagration,  and  that,  too,  without  recourse 
against  such  authorities  for  the  trespass." 

The  power  to  regulate,  therefore,  applies  alike  to  all 
employments.  The  test  of  the  power  is  found  in  the 
effect  the  pursuit  of  the  calling  has  upon  the  public  weal, 
rather  than  in  the  inherent  nature  of  the  calling  itself. 

In  Allgeyer  v.  Louisiana,  165  U.  S.  578,  the  court, 
referring  to  the  fourteenth  amendment  to  the  Constitu- 
tion of  the  United  States,  said: 

"The  liberty  mentioned  in  that  amendment  means 
not  only  the  right  of  the  citizen  to  be  free  from  the  mere 
physical  restraint  of  his  person,  as  by  incarceration,  but 
the  term  is  deemed  to  embrace  the  right  of  the  citizen 
to  be  free  in  the  enjoyment  of  all  his  faculties ;  to  be  free 
to  use  them  in  all  lawful  ways ;  to  live  and  work  where 
he  will;  to  earn  his  livelihood  by  any  lawful  calling;  to 


§  127      WORKMEN'S  COMPENSATION  AND  INSURANCE.      324 

pursue  any  livelihood  or  avocation,  and  for  that  purpose 
to  enter  into  all  contracts  which  may  be  proper,  neces- 
sary and  essential  to  his  carrying  out  to  a  successful 
conclusion  the  purposes  above  mentioned." 

It  is  thought  the  act  at  bar  interferes  with  certain  of 
the  personal  rights  here  defined,  particularly  with  the 
right  of  contract,  and  is  for  that  reason  violative  of  this 
provision  of  the  Constitution.  But  it  is  recognized  in 
the  case  cited,  and  in  many  others,  that  these  rights  are 
not  absolute.  On  the  contrary,  it  has  been  many  times 
said  that  there  is  no  absolute  right  to  do  as  one  wills, 
pursue  any  calling  one  desires,  or  contract  as  one 
chooses;  that  the  term  liberty  means  absence  of  arbi- 
trary restraint,  not  immunity  from  reasonable  regula- 
tions and  prohibitions  imposed  in  the  interests  of  the 
community.  The  principle  was  thus  stated  in  Frisbie  v. 
United  States,  157  U.  S.  160: 

"A  second  objection,  insisted  upon  now  as  it  was  by 
demurrer  to  the  indictment,  is  that  the  act  under  which 
the  indictment  was  found  is  unconstitutional,  because 
interfering  with  the  price  of  labor  and  the  freedom  of 
contract.  This  objection  also  is  untenable.  While  it 
may  be  conceded  that,  generally  speaking,  among  the 
inalienable  rights  of  the  citizens  is  that  of  the  liberty  of 
contract,  yet  such  liberty  is  not  absolute  and  universal. 
It  is  within  the  undoubted  power  of  government  to  re- 
strain some  individuals  from  all  contracts,  as  well  as  all 
individuals  from  some  contracts.  It  may  deny  to  all  the 
right  to  contract  for  the  purchase  or  sale  of  lottery  tick- 
ets; to  the  minor  the  right  to  assume  any  obligations, 
except  for  the  necessaries  of  existence;  to  the  common 
carrier  the  power  to  make  any  contract  releasing  himself 
from  negligence,  and,  indeed,  may  restrain  all  engaged 
in  any  employment  from  any  contract  in  the  course  of 
that  employment  which  is  against  public  policy.  The 
possession  of  this  power  by  government  in  no  manner 
conflicts  with  the  proposition  that,  generally  speaking, 


3^5  WASHINGTON  ACT. 

every  citizen  has  a  right  freely  to  contract  for  the  price 
of  his  labor,  services,  or  property." 

Again,  in  the  case  of  Holden  v.  Hardy,  169  U.  S.  366, 
the  court,  holding  constitutional  the  statute  of  the  State 
of  Utah  fixing  the  number  of  hours  a  workingman 
should  be  permitted  to  work  continuously  in  under- 
ground mines,  used  this  language: 

"This  right  of  contract,  however,  is  itself  subject  to 
certain  limitations  which  the  state  may  lawfully  impose 
in  the  exercise  of  its  police  powers.  While  this  power 
is  inherent  in  all  governments,  it  has  doubtless  been 
greatly  expanded  in  its  application  during  the  past  cen- 
tury, owing  to  an  enormous  increase  in  the  number  of 
occupations  which  are  dangerous,  or  so  far  detrimental 
to  the  health  of  employes  as  to  demand  special  precau- 
tions for  their  well-being  and  protection,  or  the  safety 
of  adjacent  property.  While  this  court  has  held,  notably 
in  the  cases  Davidson  v.  New  Orleans,  96  U.  S.  97,  and 
Yick  Wo  v.  Hopkins,  118  U.  S.  356,  that  the  police 
power  can  not  be  put  forward  as  an  excuse  for  oppres- 
sive and  unjust  legislation,  it  may  be  lawfully  resorted 
to  for  the  purpose  of  preserving  the  public  health,  safety 
or  morals,  or  the  abatement  of  public  nuisances,  and  a 
large  discretion  'is  necessarily  vested  in  the  legislature 
to  determine  not  only  what  the  interests  of  the  public 
require,  but  what  measures  are  necessary  for  the  protec- 
tion of  such  interests.' ' 

So,  in  State  v.  Buchanan,  supra,  this  court,  holding 
constitutional  the  act  limiting  the  number  of  hours 
women  could  be  required  to  work  in  one  day  in  mechan- 
ical and  mercantile  establishments,  said: 

"Law  is,  or  ought  to  be,  a  progressive  science'.  While 
the  principles  of  justice  are  immutable,  changing  condi- 
tions of  society  and  the  evolution  of  employment  make 
a  change  in  the  application  of  principles  absolutely  neces- 
sary to  an  intelligent  administration  of  government.  In 
the  early  history  of  the  law,  when  employments  were 


§  i2/      WORKMEN'S  COMPENSATION  AND  INSURANCE.      326 

few  and  simple,  the  relative  conditions  of  the  citizen  and 
the  state  were  different,  and  many  employments  and 
uses  which  were  then  considered  inalienable  rights  have 
since,  from  the  very  necessity  of  changed  conditions, 
been  subjected  to  legislative  control,  restriction,  and  re- 
straint. This  all  flows  from  the  old  announcement  made 
by  Blackstone  that  when  man  enters  into  society,  as  a 
compensation  for  the  protection  which  society  gives  to 
him,  he  must  yield  up  some  of  his  natural  rights,  and,  as 
the  responsibilities  of  the  government  increase,  and  a 
greater  degree  of  protection  is  afforded  to  the  citizen, 
the  recompense  is  the  yielding  of  more  individual  rights. 
Transportation  companies  are  now  controlled  and  re- 
stricted, where  a  few  years  ago  they  claimed  the  right 
to  transact  their  business  exactly  as  it  suited  their  private 
interests.  The  practice  of  medicine  is  restricted  and 
controlled;  laws  against  quackery  and  empiricism  are 
enforced  without  question.  The  sale  of  liquor,  which 
formerly  was  a  legitimate  business,  and  which  the  citizen 
had  a  right  to  enter  into,  as  he  did  any  other  business, 
without  any  restrictions,  has  now  become  subject  to  the 
control  of  the  state,  or  to  actual  prohibition  at  the  will  of 
the  state.  The  changing  conditions  of  society  have  made 
an  imperative  call  upon  the  state  for  the  exercise  of  these 
additional  powers,  and  the  welfare  of  society  demands 
that  the  state  should  assume  these  powers,  and  it  is  the 
duty  of  the  court  to  sustain  them  whenever  it  is  found 
that  they  are  based  upon  the  idea  of  the  promotion  and 
protection  of  society." 

If,  therefore,  the  act  in  controversy  has  a  reasonable 
relation  to  the  protection  of  the  public  health,  morals, 
safety  of  welfare,  it  is  not  to  be  set  aside  because  it  may 
incidentally  deprive  some  person  of  his  property  without 
fault  or  take  the  property  of  one  person  to  pay  the  obli- 
gations of  another.  To  be  fatally  defective  in  these  re- 
spects, the  regulation  must  be  so  utterly  unreasonable 


327  WASHINGTON  ACT.  §  127 

and  so  extravagant  in  nature  and  purpose  as  to  capri- 
ciously interfere  with  and  destroy  private  rights. 

That  the  statute  here  in  question  has  the  attribute 
of  reasonableness,  rather  than  that  of  capriciousness, 
seems  incontrovertible.  The  evil  it  seeks  to  remedy  is 
one  .that  calls  loudly  for  action.  Accidents  to  workmen 
engaged  in  the  industries  enumerated  in  it  are  all  but  in- 
evitable. It  seems  that  no  matter  how  carefully  laws 
for  the  prevention  of  accident  in  such  industries  may  be 
framed,  or  how  rigidly  they  may  be  enforced,  there  is  an 
element  of  human  equation  that  enters  into  the  problem 
which  can  not  be  eliminated  and  which  invariably  causes 
personal  injuries  and  consequent  financial  losses  to 
workmen  engaged  therein.  Heretofore  these  losses 
have  been  borne  by  the  injured  workmen  themselves,  by 
their  dependents,  or  by  the  State  at  large.  It  was  the 
belief  of  the  legislature  that  they  should  be  borne  by  the 
industries  causing  them,  or,  perhaps  more  accurately,  by 
the  consumers  of  the  products  of  such  industries.  That 
the  principle  thus  sought  to  be  put  into  effect  is  eco- 
nomically, sociologically,  and  morally  sound,  we  think 
must  be  conceded.  It  is  so  treated  by  the  learned  coun- 
sel who  have  filed  briefs  in  support  of  the  auditor's  con- 
tentions; it  is  so  conceded  by  all  modern  statesmen,  jur- 
ists, and  economic  writers  who  have  voiced  their  opinion 
on  the  subject;  and  the  principle  has  been  enacted  into 
law  by  nearly  all  of  the  civilized  countries  of  Europe,  by 
Australia,  by  New  Zealand,  by  the  Transvaal,  by  the 
principal  Provinces  of  the  Dominion  of  Canada,  and  in  a 
partial  form  at  least  by  one  or  more  of  South  American 
Republics.  Indeed,  so  universal  is  the  sentiment  that 
to  assert  to  the  contrary  is  to  turn  the  face  against  the 
enlightened  opinion  of  mankind.  The  common  law  does 
not  purport  to  afford  a  remedy  for  the  condition  here 
found  to  exist.  It  affords  relief  to  an  injured  workman 
in  only  a  limited  number  of  cases;  cases  where  the  in- 
jury is  the  result  of  fault  on  the  part  of  the  employer 


§  127      WORKMEN'S  COMPENSATION  AND  INSURANCE.      328 

and  there  is  want  of  fault  on  the  part  of  the  workman. 
For  the  greater  number  of  injuries  traceable  to  the  dan- 
gers incident  to  industry,  no  remedy  at  all  is  afforded. 
The  act,  therefore,  having  in  its  support  these  economic 
and  moral  considerations,  is  not  unconstitutional  for  the 
reasons  suggested  upon  this  branch  of  the  argument. 

Passing  to  the  second  objection,  it  is  well  settled 
that  neither  the  clause  of  the  State  constitution  prohibit- 
ing class  legislation,  nor  the  clause  of  the  fourteenth 
amendment  to  the  Constitution  of  the  United  States 
relating  to  the  equal  protection  of  the  laws,  takes  from 
the  State  the  power  to  classify  in  the  adoption  of  police 
regulations.  The  limitations  imposed  admit  of  a  wide 
discretion  in  this  respect,  and  avoid  only  what  is  done 
without  any  reasonable  basis;  that  is,  such  regulations 
as  are  in  their  nature  arbitrary.  The  learned  counsel 
for  the  auditor  recognize  this  distinction,  and  conse- 
quently do  not  attack  the  act  because  it  is  confined  to 
extra  hazardous  occupations  as  its  field  of  regulation, 
but  complain  because  its  benefits  are  not  confined  to 
workmen  injured  while  engaged  in  such  occupations.  It 
is  claimed  that  the  act  allows  workmen  employed  in 
such  industries  the  benefit  of  the  act  when  injured  out- 
side of  the  line  of  their  duties,  or  when  engaged  in  the 
business  of  the  concern  in  a  capacity  not  affected  by  the 
peculiar  hazards  of  the  business.  We  have  quoted 
enough  of  the  statute  to  show  that  it  is  somewhat  ob- 
scure in  these  respects,  but  we  are  not  inclined  to  think 
the  point  fatal  to  the  act,  even  though  we  concede  coun- 
sel's interpretation  of  it  to  be  the  correct  one.  In  sec- 
tion 27,  the  legislature  has  made  it  clear  that  it  did  not 
intend  the  provisions  relating  to  those  who  are  entitled 
to  partake  of  its  benefits  to  be  so  far  an  integral  part  of 
the  act  that  it  could  not  be  eliminated  in  part  without 
destroying  the  act  in  its  entirety.  It  is  there  expressly 
provided  that  the  adjudication  of  invalidity  of  any  part 
of  the  act  shall  not  affect  the  validity  of  the  act  as  a 


329  WASHINGTON  ACT.  §  I27 

whole  or  any  other  part  thereof.  This  means  that  the 
legislature  intended  the  act  to  be  enforced  as  far  as  it 
may  be,  even  though  it  might  not  be  valid  in  its  entirety. 
It  was  competent  for  the  legislature  so  to  provide.  Any- 
thing it  could  have  eliminated  itself  and  left  an  operative 
act,  can  be  eliminated  by  the  courts  without  destroying 
the  entire  act,  if  it  is  the  will  of  the  legislature  that  the 
remaining  parts  of  the  act  shall  stand  after  such  elim- 
ination. So  here,  if  it  be  true  that  the  legislature  has 
gone  too  far  in  this  direction,  and  has  attempted  to  in- 
clude within  its  benefits  certain  employes  who  can  not 
be  included  without  including  employes  generally,  these 
can  be  omitted  in  the  administration  of  the  act  without 
the  necessity  of  nullifying  the  entire  act.  But  whether 
any  such  workmen  are  so  improperly  included,  we  shall 
not  here  determine.  The  question  can  best  be  met  when 
it  arises  during  the  course  of  the  act's  administration. 

Again,  it  is  said  that  the  act  violates  the  provisions 
relating  to  class  legislation  because  it  diverts  the  contri- 
butions exacted  from  the  numerous  industries  to  the 
relief  of  a  particular  class  of  injured  and  disabled  work- 
men, instead  of  applying  it  to  the  relief  of  injured  work- 
men generally  or  applying  it  to  the  use  of  the  State  at 
large.  But  to  divert  the  money  collected  in  this  man- 
ner to  a  special  use  is  one  of  the  prerogatives  of  legisla- 
tion. The  right  of  the  State  to  regulate  any  form  of 
industry  arises  from  the  fact  that  its  pursuit  affects 
injuriously  the  health,  safety,  morals,  or  welfare  of  the 
persons  engaged  in  it,  or  is  inimical  in  some  form  to 
some  portion  of  the  individuals  of  the  community.  It  is 
not  necessary  that  it  always  affect  injuriously  the  public 
at  large.  On  the  contrary,  it  may  be  regulated  if  it 
affects  injuriously  those  engaged  in  it,  or  those  brought 
in  direct  contact  with  it,  even  though  its  pursuit  may 
benefit  generally  the  people  of  the  State  at  large.  Nor 
is  there  any  particular  form  which  the  regulation  must 
take.  The  conduct  of  the  business  may  be  prohibited 


§  127     WORKMEN'S  COMPENSATION  AND  INSURANCE.     '330 

entirely  in  a  particular  place  or  in  a  particular  manner; 
its  pursuit  may  be  restricted  to  certain  hours  of  the  day; 
it  may  be  permitted  to  be  conducted  only  in  case  pro- 
tective devices  are  used;  or  it  may  be  permitted  in  cer- 
tain forms  and  a  sum  of  money  exacted  from  the  indi- 
viduals carrying-  it  on  for  the  purpose  of  recompensing 
those  who  suffer  losses  because  thereof. 

So  in  this  instance,  if  the  legislature  believed  that  to 
permit  the  pursuit  of  the  industries  named  after  the 
present  manner  of  conducting  them  was  generally  for 
the  public  good  in  spite  of  the  losses  the  method  of  pur- 
suit entailed,  there  is  no  reason  why  it  should  not  con- 
fine its  regulations  to  compelling  the  owners  and  con- 
ductors of  such  industries  to  create  a  fund  out  of  which 
the  losses  caused  thereby  should  be  made  good.  That 
legislation  in  this  form  is  not  class  legislation,  nor  a 
denial  to  owners  of  property  of  the  equal  protection  of 
the  laws  is  well  sustained  by  authority. 

In  Jensen  v.  South  Dakota  Cent.  R.  Co.,  supra,  the 
court,  discussing  the  question,  used  this  language : 

"The  exercise  of  the  police  power  in  this  class  of 
cases  is  based  upon  the  ground  that,  where  persons  are 
engaged  in  a  calling  or  business  attended  with  danger 
to  other  persons  and  their  property,  then  the  legislature 
may  step  in  and  impose  conditions  upon  the  exercise  of 
such  calling  or  business  for  the  general  good  and  wel- 
fare of  society,  -and  may  prescribe  the  terms  on  which 
such  dangerous  calling  or  business  will  be  permitted  to 
be  carried  on  by  persons  in  charge  thereof,  whether  such 
persons  happen  to  be  private  individuals  or  railway  cor- 
porations. The  fact  that  such  legislative  exercise  of  the 
police  power  applies  alike  to  all  persons  and  all  corpora- 
tions engaging  in  such  dangerous  calling  or  business 
relieves  it  from  the  charge  and  contention  that  there  is 
a  denial  of  equal  protection  under  the  law  by  reason  of 
such  enactments." 

In  Firemen's  Benevolent  Ass'n  v.  Lounsbury,  supra, 


33 l  WASHINGTON  ACT.  §  127 

the  court  had  under  consideration  a  statute  of  the  State 
of  Illinois  which  created  a  corporation  called  the  Fire- 
men's Benevolent  Association,  and  required  every  in- 
surance agent  in  the  city  of  Chicago  to  pay  to  the  as- 
sociation a  fixed  percentage  upon  the  amount  of  fire  in- 
surance premiums  collected  by  him  per  year  from  fire 
insurance  effected  upon  property  in  the  city,  to  be  used 
solely  for  the  relief  of  distressed,  sick,  injured,  or  dis- 
abled firemen  and  their  immediate  families.  Answering 
the  objection  that  the  act  was  void  as  class  legislation, 
the  court  said: 

"There  is  nothing  to  be  found  in  the  constitution 
which  can  be  held  to  inhibit  the  legislature  from  impos- 
ing burthens,  or  raising  money  from  citizens  of  the 
State,  which  is  not  for  the  direct  benefit  of  the  State,  and 
is  never  designed  to  belong  to  the  State.  To  deprive 
the  legislature  of  this  power,  would  to  a  great  extent 
destroy  its  usefulness — while  it  would  to  a  certain  ex- 
tent, deprive  it  of  the  power  of  abuse,  it  would  destroy 
its  power  to  regulate  by  law^  a  thousand  things,  which 
the  public  good  requires  should  be  regulated  by  law. 
*  *  *  Let  us  once  hold  that  the  legislature  could  not 
compel  any  citizen  to  submit  to  a  burthen,  except  for  the 
benefit  of  the  State  aggregate,  or  for  some  subdivision 
of  it,  as  a  county,  city  or  town,  or  to  pay  any  money 
except  it  shall  go  into  the  State  or  some  subordinate 
public  treasury,  and  we  should  soon  find  ourselves  on 
the  brink  of  anarchy  itself — we  should  tie  up  the  hands 
of  the  legislature  it  is  true,  so  that  they  might  not  do 
some  evils  which  they  have  hitherto  had  the  power  of 
doing;  but  we  should  also  let  loose  upon  society  ten 
thousand  evils,  which  in  every  well-regulated  commun- 
ity it  has  always  been  the  duty  of  the  legislature  to  sup- 
press. It  is  in  the  exercise  of  this  indispensable  power, 
that  ferries,  toll  bridges  and  the  like  are  licensed  or 
chartered.  The  legislature,  finding  it  necessary  to  afford 
especial  encouragement  to  private  enterprise  to  erect  a 


§127      WORKMEN'S  COMPENSATION  AND  INSURANCE.      332 

bridge  or  a  ferry,  has  ever  exercised  the  power  of  im- 
posing a  burthen  on  some,  for  the  benefit  of  others. 
Who  ever  doubted  the  right  of  the  legislature  to  charter 
a  bridge  and  to  require  all  persons  crossing  the  stream 
within  certain  limits,  to  pay  the  tolls,  whether  they  cross 
on  the  bridge  or  not?  It  is  the  exercise  of  the  same 
power,  which  fixes  the  fees  of  officers  for  the  perform- 
ance of  certain  services.  It  is  the  power  which  the 
legislature  possesses,  of  imposing  burthens  upon  certain 
members  of  the  community  who  are  supposed  to  be 
benefited,  by  the  efforts  or  acts  of  certain  other  mem- 
bers of  the  community,  as  a  reward  or  compensation  for 
such  acts.  *  *  *  It  would  fill  a  volume  to  enumer- 
ate all  the  familiar  instances  of  the  exercise  of  this  power 
— a  power  which  must  be  exercised  constantly  in  every 
civilized  community,  or  the  well  being  of  that  commun- 
ity must  vitally  suffer." 

In  State  v.  Cassidy,  22  Minn.  312,  21  Am.  Rep.  765, 
the  court  sustained  an  act  which  required  the  vendors 
of  intoxicating  liquors  to  pay  a  fixed  sum  per  annum 
into  the  State  treasury,  in  addition  to  the  usual  license 
fee,  as  a  fund  to  be  disbursed  by  a  State  commission  in 
the  creation  and  operation  of  a  State  asylum  for  the 
care  and  cure  of  inebriates.  The  court  in  its  opinion 
points  out  that  the  act  is  an  exercise  of  police  power, 
saying: 

"It  regards  the  traffic  as  one  tending  to  produce  in- 
temperance, and  as  likely,  by  reason  thereof,  to  entail 
upon  the  State  the  expense  and  burthen  of  providing  for 
a  class  of  persons  rendered  incapable  of  self-support,  the 
evil  influence  of  whose  presence  and  example  upon 
society  is  necessarily  injurious  to  the  public  welfare  and 
prosperity,  and,  therefore,  calls  for  such  legislative  inter- 
position as  will  operate  as  a  restraint  upon  the  business, 
and  protect  the  community  from  the  mischiefs,  evils  and 
pecuniary  burthens  flowing  from  its  prosecution.  *  *  * 
That  these  provisions  unmistakably  partake  of  the  na- 


333  WASHINGTON  ACT.  §  127 

ture  of  police  regulations,  and  are  strictly  of  that  char- 
acter, there  can  be  no  doubt,  nor  can  it  be  denied  that 
their  expediency  or  necessity  is  solely  a  legislative,  and 
not  a  judicial,  question.  *  *  * 

"Regarding  the  law  as  a  precautionary  measure,  in- 
tended to  operate  as  a  wholesome  restraint  upon  the 
traffic,  and  as  a  protection  to  society  against  its  conse- 
quent evils,  the  exacted  fee  is  not  unreasonable  in 
amount,  and  the  purpose  to  which  it  is  devoted  is  strictly 
pertinent  and  appropriate.  It  could  not  be  questioned 
but  that  a  reasonable  sum  imposed  in  the  way  of  an  in- 
demnity to  the  State  against  the  expense  of  maintaining 
a  police  force  to  supervise  the  conduct  of  those  engaged 
in  the  business,  and  to  guard  against  the  disorders  and 
infractions  of  law  occasioned  by  its  prosecution,  would 
be  a  legitimate  exercise  of  the  police  power,  and  not 
open  to  the  objection  that  it  was  a  tax  for  the  purpose 
of  revenue,  and,  therefore,  unconstitutional.  Reclaim- 
ing the  inebriate,  restoring  him  to  society,  prepared 
again  to  discharge  the  duties  of  citizenship,  equally  pro- 
motes the  public  welfare,  and  tends  to  the  accomplish- 
ment of  like  beneficial  results,  and  it  is  difficult  to  see 
wherein  the  imposition  of  a  reasonable  license  fee  would 
be  any  the  less  a  proper  exercise  of  this  power  in  the  one 
case  than  in  the  other.  The  purpose  to  which  the  license 
fund  created  by  the  act  is  designated  is  more  consonant 
to  the  idea  of  regulating  the  traffic  and  preventing  its 
evils  than  is  the  case  under  the  general  license  law, 
which  devotes  the  fees  received  to  common-school  pur- 
poses, and  we  are  not  aware  that  any  objection  has  ever 
been  urged  against  that  law  on  that  account." 

A  statute  of  Kentucky  imposed  upon  all  dogs  a  tax 
at  a  fixed  sum  per  capita,  to  be  paid  by  their  owners,  for 
the  creation  of  a  fund  to  be  disbursed  to  sheep  growers 
whose  sheep  should  be  injured  or  destroyed  by  the  rav- 
ages of  dogs.  In  McGlone  v.  Womack,  129  Ky.  274,  111 
S.  W.  688,  17  L.  R.  A.  (N.  S.)  855,  this  statute  was  chal- 


§127      WORKMEN'S  COMPENSATION  AND  INSURANCE.      334 

lenged  by  a  number  of  owners  of  dogs  on  the  ground 
that  it  violated  the  State  constitution.  Answering  the 
objection  that  it  was  class  legislation,  the  court  said: 

"Nor  do  we  think  the  act  is  inimical  to  that  portion 
of  section  3  of  the  bill  of  rights  which  provides :  '*  *  * 
And  no  grant  of  exclusive,  separate  public  emoluments 
or  privileges  shall  be  made  to  any  man  or  set  of  men,  ex- 
cept in  consideration  of  public  services.  *  *  *'  As 
we  view  it,  the  statute  does  not  confer  any  special  privi- 
lege on  the  owner  of  sheep.  It  merely  protects  these 
owners  from  the  destruction  of  their  property  by  dogs. 
It  is  the  duty  of  the  State  to  protect  every  citizen  in  his 
life,  liberty,  and  property;  and  it  certainly  is  within  the 
competency  of  the  legislature  to  exercise  the  police 
power  of  the  State  to  protect  all  property  against  the 
ravages  of  destructive  animals.  The  question  as  to  how 
this  is  to  be  done  and  what  property  is  to  be  so  pro- 
tected is  a  matter  of  legislative  discretion.  Undoubtedly 
the  sheep  industry  is  a  most  important  one  to  the  whole 
State.  All  of  our  citizens  are  interested  in  an  industry 
which  supplies  the  market  with  wholesome  meat,  pro- 
vides means  of  obtaining  warm  and  comfortable  cloth- 
ing, and  at  the  same  time  furnishes  labor  to  the  other- 
wise unemployed.  It  is  only  necessary  to  allude  to  this 
phase  of  the  question.  The  importance  of  the  industry 
as  a  whole  is  most  obvious.  It  is  equally  obvious  that 
sheep  are  peculiarly  liable  to  the  ravages  of  dogs.  They 
have  neither  the  fleetness  to  escape  nor  the  courage  to 
defend  themselves  from  attack,  and  their  silent  suffering 
enables  the  dog  to  prey  upon  them  without  any  danger 
that  the  owner  will  be  warned  of  the  destruction  of  his 
property  by  the  outcry  of  the  dying  animal.  *  *  * 
The  fact  that  sheep  are  generally  killed  at  night  when 
it  is  impossible  to  ascertain  the  owner  of  the  dog  com- 
mitting the  ravage  makes  it  necessary,  if  protection  is  to 
be  had  through  this  channel  at  all,  that  each  owner  of  a 
dog  should  be  required  to  contribute  a  small  amount  to 


335  WASHINGTON  ACT.  §  127 

a  common  fund  dedicated  to  the  remuneration  of  own- 
ers of  sheep  killed  by  unknown  dogs.  As  said  before, 
this  is  simply  requiring  the  owners  of  dogs  to  make  good 
the  ravages  of  dangerous  animals  kept  by  them ;  and  no 
citizen  has  just  cause  of  complaint,  if  he  keeps  animals 
destructive  to  the  property  of  others,  that  he  is  required 
to  make  good  the  damages  done  by  them.  The  statute 
in  truth,  is  but  an  enforcement  of  the  maximum,  'sic 
utere  tuo  ut  alienum  non  laedas,'  and,  as  such,  its  con- 
stitutionality is  beyond  successful  question." 

(See,  also,  Leavitt  v.  City  of  Morris,  105  Minn.  170, 
117  N.  W.  393,  17  L.  R.  A.  (N.  S.)  984;  Mitchell  v.  Wil- 
liams, 27  Ind.  62;  Van  Horn  v.  People,  46  Mich.  183,  9 
N.  W.  246,  41  Am.  Rep.  159;  Cole  v.  Hall,  103  111.  30; 
Longyear  v.  Buck,  83  Mich.  236,  47  N.  W.  234,  10  L.  R. 
A.  43;  Hoist  v.  Roe,  39  Ohio  St.  340,  48  Am.  Rep.  459; 
State  v.  Frame,  39  Ohio  St.  399.) 

The  foregoing  cases,  while  defending  the  statute 
here  in  question  against  the  charge  of  class  legislation, 
are  interesting  from  another  aspect  also.  They  furnish 
examples  of  constitutional  statutes  creating  liability 
without  fault.  To  effect  insurance  as  an  agent,  to  sell 
intoxicating  liquors  where  not  forbidden  by  the  State, 
or  to  own  and  keep  dogs,  is  not  of  itself  unlawful;  and 
it  would  seem  that  any  reason  which  would  justify  the 
levying  of  a  tax  on  persons  pursuing  these  occupations 
as  business  callings,  or  owning  and  keeping  the  species 
of  property  mentioned,  would  justify  the  levy  sought  to 
be  made  by  the  act  before  us. 

The  third  principal  objection  to  the  constitutionality 
of  the  act  is  that  it  violates  the  provisions  of  the  consti- 
tution designed  to  secure  equal  and  uniform  taxation  of 
property  for  public  purposes.  As  the  charge  laid  on  the 
persons  engaged  in  the  industries  named  in  the  act  is 
a  pecuniary  burden  imposed  by  public  authority,  it  par- 
takes of  the  nature  of  a  tax,  and  in  the  language  of  a 
distinguished  judge  discussing  a  similar  question,  "for 


§  127      WORKMEN'S  COMPENSATION  AND  INSURANCE.      336 

many  purposes  might  be  so  spoken  of  without  harm." 
But  it  is  manifest  that  it  is  not  a  tax  in  the  sense  the 
word  is  used  in  the  sections  of  the  constitution  to  which 
reference  is  here  made.  No  accession  to  the  public 
revenue,  general  or  local,  is  authorized  or  aimed  at.  The 
purpose  of  the  exaction  is  entirely  different.  It  is  to  be 
used,  not  to  meet  the  current  expenses  of  government, 
but  to  recompense  employes  of  the  industries  on  whom 
the  burden  is  imposed  for  injuries  received  by  them 
while  engaged  in  the  pursuit  of  their  employment.  It 
is  the  consideration  which  the  owners  of  the  industries 
pay  for  the  privilege  of  carrying  them  on.  It  is,  there- 
fore, in  the  nature  of  a  license  tax,  and  can  be  justified 
on  the  principle  of  law  that  justifies  the  imposition  and 
collection  of  license  taxes  generally.  In  this  State,  such 
taxes  may  be  imposed,  either  as  a  regulation  or  for  the 
purposes  of  revenue,  the  only  limitation  upon  the  power 
being  that  such  taxes  when  imposed  on  useful  trades  and 
industries  shall  not  be  unreasonable,  and  if  a  class  of 
trades  or  industries  is  selected  from  the  whole,  and  the 
tax  imposed  upon  the  class  selected  alone  rather  than 
upon  the  whole,  that  there  be  some  reasonable  ground 
for  making  the  distinction.  (Walla  Walla  v.  Ferdon, 
21  Wash.  308,  57  Pac.  796;  Fleetwood  v.  Read,  21  Wash. 
547,  58  Pac.  665,  47  L.  R.  A.  205 ;  Stull  v.  DeMattos,  23 
Wash.  71 ;  62  Pac.  451,  51  L.  R.  A.  892;  Seattle  v.  Barto, 
31  Wash.  141,  71  Pac.  735;  In  re  Garfinkle,  37  Wash. 
650,  80  Pac.  188;  Oilure  Mfg.  Co.  v.  Pidduck-Ross  Co., 
38  Wash.  137,  80  Pac.  276;  McKnight  v.  Hodge,  55 
Wash.  289,  104  Pac.  504.) 

The  general  rule  governing  the  right  to  impose  such 
license  taxes  is  well  stated  by  Judge  Brewer  in  City  of 
Newton  v.  Atchison,  31  Kan.  1ST,  1  Pac.  288,  47  Am. 
Rep.  486,  in  the  following  language: 

"Before  noticing  some  specific  objections  which  are 
made  to  this  particular  tax,  we  think  it  proper  to  state 


337  WASHINGTON  ACT.  §  127 

certain  general  propositions  which  underlie  this  matter 
of  a  license  tax. 

"First.  In  the  absence  of  any  inhibition,  express  or 
implied,  in  the  constitution,  the  legislature  has  power, 
either  directly  to  levy  and  collect  license  taxes  on  any 
business  or  occupation,  or  to  delegate  like  authority  to 
a  municipal  corporation.  This  seems  to  be  the  con- 
current voice  of  all  the  authorities.  In  1  Dillon  on 
Municipal  Corporations,  3d  ed.,  sec.  357,  note,  the  author 
says:  'Unless  specially  restrained  by  the  constitution, 
the  legislature  may  provide  for  the  taxing  of  any  occupa- 
tion or  trade,  and  may  confer  this  power  upon  municipal 
corporations.'  In  Burroughs  on  Taxation,  page  148,  is 
this  language :  'Where  the  constitution  is  silent  on  the 
subject,  the  right  of  the  State  to  exact  from  its  citizens 
a  tax  regulated  by  the  avocations  they  pursue,  can  not 
be  questioned.'  In  Savings  Society  v.  Coite,  6  Wall. 
606,  the  Supreme  Court  of  the  United  States,  thus  states 
the  law:  'Nothing  can  be  more  certain  in  legal  decision 
than  that  the  privileges  and  franchises  of  a  private  cor- 
poration, and  all  trades  and  avocations  by  which  the  citi- 
zens acquire  a  livelihood,  may  be  taxed  by  a  State  for 
the  support  of  the  State  government/  (Hamilton  Co. 
v.  Massachusetts,  6  Wall.  638;  Cooley  on  Taxation,  384 
to  392,  410.)  On  page  384  the  author  observes,  The 
same  is  true  of  occupations;  government  may  tax  one, 
or  it  may  tax  all.  There  is  no  restriction  upon  its  power 
in  this  regard  unless  one  is  expressly  imposed  by  the 
constitution.' 

"In  State  Tax  on  Foreign-held  Bonds,  15  Wall.  300, 
Field,  J.,  among  other  things,  speaking  of  the  power  of 
taxation,  says : 

"  'It  may  touch  property  in  every  shape,  in  its  natural 
condition,  in  its  manufactured  form  and  in  its  various 
transmutations.  And  the  amount  of  taxation  may  be 
determined  by  the  value  of  the  property,  or  its  use,  or 
its  capacity,  or  its  productiveness.  It  may  touch  busi- 
22— BOTD  w  c 


§127      WORKMEN'S  COMPENSATION  AND  INSURANCE.      338 

ness  in  the  almost  infinite  forms  in  which  it  is  con- 
ducted; in  professions,  in  commerce,  in  manufactures, 
and  in  transportation.  Unless  restrained  by  the  consti- 
tution, the  power  as  the  mode,  form  and  extent  of  taxa- 
tion is  unlimited.' 

"(See  also  the  authorities  collected  in  Fretwell  v. 
City  of  Troy,  18  Kas.  274.)  Nor  does  this  rest  alone  upon 
a  mere  matter  of  authority.  Full  legislative  power  is, 
save  as  specially  restricted  by  the  constitution,  vested  in 
the  legislature.  Taxation  is  a  legislative  power.  Full 
discretion  and  control  therefore  in  reference  to  it  are 
vested  in  the  legislature,  save  when  specially  restricted. 
There  is  no  inherent  vice  in  the  taxation  of  avocations. 
On  the  contrary,  business  is  as  legitimate  an  object  of 
the  taxing  power  as  property.  Oftentimes  a  tax  on 
the  former  results  in  a  more  even  and  exact  justice  than 
one  on  the  latter.  Indeed,  the  taxing  power  is  not  lim- 
ited to  either  property  or  avocation.  It  may,  as  was  in 
fact  done  during  the  late  war  and  the  years  immediately 
succeeding,  be  cast  upon  incomes,  or  placed  upon  deeds 
and  other  instruments.  We  know  there  is  quite  a  preju- 
dice against  occupation  taxes.  It  is  thought  to  be  really 
double  taxation.  Judge  Dillon  well  says  that  'such  taxes 
are  apt  to  be  inequitable,  and  the  principle  not  free  from 
danger  of  great  abuse.'  Yet,  wisely  imposed,  they  will 
go  far  toward  equalizing  public  burdens.  A  lawyer  and 
a  merchant  may,  out  of  their  respective  avocations,  ob- 
tain the  same  income.  Each  receives  the  same  protec- 
tion and  enjoys  the  same  benefits  of  society  and  govern- 
ment. Yet  the  one  having  tangible  property  pays 
taxes;  the  other,  whose  property  is  all  in  legal  learning 
and  skill,  wholly  intangible,  pays  nothing.  A  wisely- 
adjusted  occupation  tax  equalizes  these  inequalities. 
But  after  all,  these  are  questions  of  policy,  and  for  legis- 
lative consideration.  It  is  enough  for  the  courts  that 
both  occupation  and  property  are  legitimate  objects  of 
taxation;  that  they  are  essentially  dissimilar;  that  con- 


339  WASHINGTON  ACT.  §  127 

stitutional  provisions  regulating  the  taxation  of  one  do 
not  control  that  of  the  other;  and  that  there  are  no  con- 
stitutional inhibitions  on  the  taxation  of  business,  either 
by  the  legislature  directly,  or  by  the  municipal  corpora- 
tions thereto  empowered  by  the  legislature. 

"Second.  There  is  no  inhibition,  expressed  or  im- 
plied, in  our  constitution,  on  the  power  of  the  legislature 
to  levy  and  collect  license  taxes,  or  to  delegate  like 
power  to  municipal  corporations.  It  is  not  pretended 
that  there  is  any  express  inhibition.  It  has  been  con- 
tended that  section  1,  article  11,  creates  an  implied  in- 
hibition, and  this  because  it  reads  that  'the  legislature 
shall  provide  for  a  uniform  and  equal  rate  of  assessment 
and  taxation.'  But  that  section  obviously  refers  to  prop- 
erty, and  not  to  license  taxes." 

In  Fleetwood  v,  Read,  supra,  this  court,  discussing 
the  question  whether  taxation  of  this  sort  was  prohibited 
by  the  constitution,  said: 

"It  is  insisted,  also  that  the  ordinance  is  void  because 
it  imposes  a  burden  upon  a  portion,  and  not  the  whole, 
of  a  class  of  merchants.  We  do  not  think  this  conten- 
tion is  tenable.  The  ordinance  does  apply  to  all  mer- 
chants who  see  fit  to  engage  in  the  business  of  buying 
tickets  of  that  kind,  and  the  constitutional  provision 
(art.  1,  sec.  12)  that  no  law  shall  be  passed  granting  to 
any  citizen,  class  of  citizens,  or  corporation  other  than 
municipal,  privileges  or  immunities  which,  upon  the 
same  terms,  shall  not  equally  belong  to  all  citizens  or 
corporations,  can  not  be  invoked  against  this  ordinance. 
The  adjudicated  cases  in  this  respect  are  so  numerous 
that  it  is  scarcely  worth  while  to  mention  them  here. 

"The  ordinance  can  not  be  held  void  on  account  of 
excessive  burden  imposed.  It  is  not  so  oppressive  that 
it  will  in  any  way  interfere  with  the  rights  of  merchants. 
However  wrong  the  policy  may  be  which  prompted  the 
enactment  of  this  ordinance,  or  however  doubtful  the 
propriety  of  passing  such  an  ordinance,  those  are  ques- 


§  i2/      WORKMEN'S  COMPENSATION  AND  INSURANCE.      340 

tions  which  are  submitted  by  the  legislature  to  the  dis- 
cretion of  the  council,  and  upon  them  it  is  not  our 
province  to  comment.  We  think  without  further  in- 
vestigation, that  there  is  no  doubt  that  the  ordinance 
is  warranted  by  legislative  authority. 

"Some  question  was  raised  by  the  court  at  the  time 
of  the  argument  of  this  case  in  relation  to  the  ordinance 
being  in  conflict  with  sees.  1,  2  and  9  of  art.  7  of  the  State 
constitution,  which  provide  for  uniformity  in  taxation. 
Counsel  for  the  respondent  was  requested  by  the  court 
to  furnish  it  with  a  brief  on  that  subject,  which  he  did, 
and  upon  an  examination  of  the  cases  cited  and  of  other 
cases,  we  have  become  convinced  that  the  question 
raised  by  the  court  was  not  a  question  pertinent  in  this 
case;  that,  under  the  great  weight  of  authority,  a  tax  on 
occupation,  business,  etc.,  is  not,  in  legal  contemplation, 
a  tax  on  property,  which  falls  within  the  inhibition  im- 
posed by  the  usual  constitutional  provisions  in  relation  ta 
uniformity  of  taxation ;  and,  in  consideration  of  the  fact 
that  the  State  constitution  is  a  limitation  upon  the 
actions  and  powers  of  the  legislature  instead  of  a  grant 
of  power,  that  the  power  of  the  legislature  to  tax  trades, 
professions  and  occupations  is,  in  the  absence  of  con- 
stitutional restriction,  a  matter  within  its  absolute  con- 
trol and  resting  entirely  in  sound  legislative  discretion." 

The  sums  exacted  from  the  several  industries  named 
we  think  may  be  treated  as  partaking  both  of  the  nature 
of  a  license  for  revenue  and  regulation;  as  such,  how- 
ever, we  find  nothing  in  the  principle  inimical  to  either 
the  State  or  Federal  constitutions. 

The  fourth  principal  reason  for  which  the  act  is 
thought  to  be  unconstitutional  is  that  it  interferes  with 
the  right  of  trial  by  jury.  It  is  said  that  the  legislature 
can  not  fix  a  Procrustean  rule  for  the  admeasurement 
of  damages  arising  from  injuries  received  by  one  in  the 
employment  of  another,  as  the  employer  and  the  em- 
ploye alike  have  the  right  to  submit  to  a  jury  both  the 


34 1  WASHINGTON  ACT.  §  I2/ 

question  of  the  right  to  recover  for  any  such  injury,  and 
the  question  of  the  amount  that  may  be  recovered  there- 
for. But  we  can  not  think  the  rule  absolute.  It  may 
be  that  the  legislature  can  not  fix  the  amount  of  recov- 
ery, or  provide  for  an  absolute  recovery,  in  all  cases 
where  one  person  is  injured  by  another,  regardless  of 
the  relation  of  the  parties,  or  the  question  whether  the 
injury  is  or  is  not  the  result  of  negligence;  but  it  does 
not  follow  that  it  may  not  so  provide  where  the  injury 
happens  in  that  class  of  employments  subject  to  legis- 
lative regulation  and  control.  If  it  be,  as  we  have  at- 
tempted to  show,  a  proper  regulation  of  hazardous  in- 
dustries to  compel  those  engaged  therein  as  owners  or 
operators  to  pay  a  fixed  sum  into  a  fund  to  be  used  for 
the  purpose  of  compensating  the  employes  thereof  for 
injuries  received  by  them,  it  is  difficult  to  understand 
why  it  is  not  also  proper  regulation  to  require  the  em- 
ployes of  such  industries  to  accept  a  given  sum  for  any 
injury  that  they  may  receive  while  so  engaged.  The 
same  power  that  authorizes  the  State  to  regulate  the 
participation  of  the  one  in  the  particular  industry  would 
seem  to  authorize  it  to  regulate  the  participation  of  the 
other  therein.  Theoretically,  of  course,  the  employer 
and  employe,  on  entering  into  a  contract  by  which  the 
one  engages  the  services  of  the  other,  stand  on  the  same 
plane;  but  in  practice,  as  it  is  well  known,  this  ideal  con- 
dition very  seldom  exists.  Greed  and  sagacity  on  the 
one  side,  and  necessity  and  incapacity  on  the  other, 
some  time  lead  to  contracts  that  create  conditions  little 
short  of  peonage;  and  our  own  reports  abound  with 
instances  where  men  have  been  induced  to  work  in  situ- 
ations so  dangerous  to  life  and  limb  that  the  wonder  is 
not  that  some  of  them  were  injured,  but  rather,  that  any 
of  them  escaped  injury.  Indeed,  it  is  a  common  thing 
for  an  employer,  in  defense  of  an  action  of  damages 
brought  by  his  employe  for  injury  received  in  such  a 
situation,  to  urge  that  the  dangers  of  the  place  were  so 


§  127      WORKMEN'S  COMPENSATION  AND  INSURANCE.      342 

obvious  and  apparent  that  the  employe  was  guilty  of 
contributory  negligence  for  working  therein.  These 
conditions,  we  think,  authorize  the  interference  of  the 
legislature.  The  grounds  upon  which  the  employer 
may  be  held  to  contribute  to  a  fund  for  the  relief  of  all 
injuries  sustained  by  his  employes  whatever  the  cause, 
we  have  already  stated.  The  obligation  of  the  employe 
to  accept  the  conditions  of  the  statute  can  rest  on  like 
grounds:  namely,  the  welfare  of  the  State.  The  rela- 
tion being  one  of  contract  between  employer  and 
employe,  the  State  may  make  it  a  condition  of  the  con- 
tract that  the  employe  shall  accept  a  fixed  sum  for  any 
injury  he  may  receive  while  engaged  in  the  employment, 
whether  the  injury  be  the  result  of  the  inherent  dangers 
of  the  employment  or  the  result  of  some  fault  of  his 
employer. 

There  is,  of  course,  no  direct  authority  supporting 
the  contention  that  the  right  of  trial  by  jury  may  be  thus 
taken  away.  There  are,  however,  cases  maintaining 
principles  more  or  less  analogous  to  the  principle  thus 
involved.  Of  these  State  v.  Buchanan,  and  Holden  v. 
Hardy,  supra,  are  illustrative.  In  these  cases  it  is  held 
that  the  legislature  may  limit  the  number  of  hours  a 
workman  shall  be  permitted  to  labor  in  certain  classes 
of  employments,  on  the  principle  that  to  do  so  is  to  pro- 
tect the  health  of  the  individual  workman  and  thus  con- 
tribute to  the  public  welfare.  If  it  be  within  the  rule  of 
the  police  powers  of  the  State  to  interfere  with  the 
workman's  personal  freedom  in  this  regard,  it  would 
seem  to  be  no  greater  stretch  of  power  to  go  one  step 
farther  and  provide  that  if  he  be  injured  while  so  labor- 
ing, he  shall  receive  a  sure  award  in  a  limited  sum  as 
compensation  for  his  injury,  and  in  lieu  thereof  shall 
forego  his  common  law  action  in  damages  therefor. 

The  common-law  system  of  making  awards  for  per- 
sonal injuries  has  no  such  inherent  merit  as  to  make  a 
change  undesirable.  While  courts  have  often  said  that 


343  WASHINGTON  ACT.  §  127 

the  question  of  the  amount  of  compensation  to  be 
awarded  for  a  personal  injury  is  one  peculiarly  within 
the  province  of  the  jury  to  determine,  the  remark  has 
been  induced  rather  because  no  better  method  for  solv- 
ing the  problem  is  afforded  by  that  system  than  because 
of  the  belief  that  no  better  method  could  be  devised. 
No  one  knows  better  than  judges  of  courts  of  nisi  prius 
and  of  review  that  the  common-law  method  of  making 
such  awards,  even  in  those  instances  to  which  it  is  ap- 
plicable, proves  in  practice  most  unsatisfactory.  All 
judges  have  been  witnesses  to  extravagant  awards  made 
for  most  trivial  injuries,  and  trivial  awards  made  for 
injuries  ruinous  in  their  nature;  and  perhaps  no  verdicts 
of  juries  are  interfered  with  so  often  by  the  courts  as 
verdicts  making  awards  in  such  cases.  There  is  no 
standard  of  measurement  that  the  court  can  submit  to 
the  jury  by  which  they  can  determine  the  amount  of  the 
award.  The  test  of  reasonableness  means  but  little  to 
the  ordinary  juror.  Unused  as  he  is  generally  to  wit- 
nessing the  results  of  injuries,  he  is  inclined  to  measure 
his  verdict  by  the  amount  of  disorder  he  observes,  rather 
than  by  the  actual  amount  of  disablement  the  injury  has 
caused.  Nor  is  he  aided  in  this  respect  by  the  testi- 
mony of  medical  experts.  Conflicting  as  such  testi- 
mony usually  is,  it  tends  rather  to  confuse  than  to  en- 
lighten him.  Perhaps  the  whole  difficulty  lies  in  the 
fact  that  the  question  is  too  much  one  of  opinion,  and 
not  enough  of  fact.  It  must  be  remembered,  also,  that 
the  remedy  afforded  by  the  common  law,  as  we  have 
elsewhere  remarked,  can  be  applied  only  in  a  limited 
number  of  cases  of  injury;  cases  where  the  injury  is  the 
result  of  negligence  on  the  part  of  the  employer,  not 
contributed  to  by  the  employe.  For  the  greater  num- 
ber of  injuries  the  common  law  affords  no  remedy  at 
all.  For  this  unscientific  system,  it  is  proposed  to  sub- 
stitute a  system  which  will  make  an  award  in  all  cases 
of  injury,  regardless  of  the  cause  or  manner  of  its  in- 


§  127     WORKMEN'S  COMPENSATION  AND  INSURANCE.      344 

fliction;  limited  in  amount,  it  is  true,  but  commensurate 
in  some  degree  to  the  disability  suffered.  The  desir- 
ability of  this  substitution  is  unquestioned,  and  we  be- 
lieve that  the  legislature  had  the  power  to  make  it  with- 
out violating  any  principle  of  the  fundamental  law. 

The  objection  may  be  answered  also  in  another  way. 
The  constitution  does  not  undertake  to  define  what  shall 
constitute  a  cause  of  action,  nor  to  prohibit  the  legis- 
lature from  so  doing.  The  right  of  trial  by  jury  ac- 
corded by  the  constitution,  as  applicable  to  civil  cases,  is 
incident  only  to  causes  of  action  recognized  by  law.  The 
act  here  in  question  takes  away  the  cause  of  action,  on 
the  one  hand,  and  the  ground  of  defense,  on  the  other; 
and  merges  both  in  a  statutory  indemnity,  fixed  and 
certain.  If  the  power  to  do  away  with  a  cause  of  action 
in  any  case  exists  at  all,  in  the  exercise  of  the  police 
power  of  the  State,  then  the  right  of  trial  by  jury  is 
thereafter  no  longer  involved  in  such  cases.  The  right 
of  jury  trial  being  incidental  to  the  right  of  action,  to 
destroy  the  one  is  to  leave  the  other  nothing  upon  which 
to  operate. 

The  auditor  also  complains  of  the  scheme  adopted 
by  the  legislature  for  correcting  the  evil  they  have  found 
to  exist.  It  is  said  that  the  scheme  is  unduly  cumber- 
some; that  its  administration  will  prove  unnecessarily 
costly  and  burdensome  to  those  whose  interests  are 
affected  by  it,  and  will  lead  to  public  and  private  abuses 
and  consequent  evils  more  dangerous  to  the  State  than 
the  evil  that  it  is  sought  to  correct.  But  the  courts  are 
slow  to  inquire  into  the  mere  wisdom  of  a  statute.  This 
question  is  so  pre-eminently  one  for  the  law-making 
branch  of  the  Government  that  the  courts  will  interfere 
only  where  there  can  be  no  two  opinions  as  to  the 
mischievous  and  evil  tendencies  of  the  act.  The  act  in 
question  here  was  framed  by  a  commission  composed 
of  men  eminent  for  their  ability,  who  gave  to  the  work 
extended  consideration.  It  was  selected  by  the  legis- 


345  WASHINGTON  ACT.  §  1 27 

lature  from  among  a  number  of  proposed  acts  having 
a  similar  purpose  submitted  for  their  examination;  and 
this,  too,  after  its  evil  tendencies  had  been  fully  pointed 
out  by  the  representatives  of  the  different  interests  to  be 
affected  by  it.  In  the  light  of  these  facts,  the  court  can 
not  do  otherwise  than  put  it  to  the  test  of  practice. 
Moreover,  the  question  becomes  one  of  less  importance 
when  it  is  remembered  that  the  sessions  of  the  legisla- 
ture are  sufficiently  close  together  to  enable  that  body 
to  correct  any  evil  influence  the  enforcement  of  the  act 
may  have  before  it  becomes  unduly  harmful. 

In  the  foregoing  discussion  we  have  not  referred  to 
the  decision  of  the  Court  of  Appeals  of  the  State  of  New 
York  in  the  case  of  Ives  v.  South  Buffalo  R.  Co.,  201 
N.  Y.  271,  94  N.  E.  431  [Bulletin  No.  92,  p.  251],  which 
holds  the  workingmen's  compensation  act  of  that  State 
to  be  in  conflict  with  the  due  process  of  law  clause  of 
the  State  constitution,  and  the  fourteenth  amendment 
to  the  Constitution  of  the  United  States.  The  case  has, 
however,  been  the  subject  of  extended  consideration  in 
the  briefs  of  counsel,  and  it  is  urged  upon  us  by  counsel 
for  the  auditor  as  conclusive  of  the  questions  at  bar. 
The  act  the  court  there  had  in  review  is  dissimilar  in 
many  respects  to  the  act  before  us,  and  is  perhaps  less 
easily  defended  on  economic  grounds.  The  principle 
embodied  in  the  statutes  is,  however,  the  same;  and  it 
must  be  conceded  that  the  case  is  direct  authority 
against  the  position  we  have  here  taken.  We  shall 
offer  no  criticism  of  the  opinion.  We  will  only  say  that, 
notwithstanding  the  decision  comes  from  the  highest 
court  of  the  first  State  of  the  Union,  and  is  supported  by 
a  most  persuasive  argument,  we  have  not  been  able  to 
yield  our  consent  to  the  views  there  taken. 

We  conclude,  therefore,  that  the  act  in  question  vio- 
lates no  provision  of  either  the  State  or  Federal  con- 
stitutions, and  that  the  auditor  should  give  it  effect. 
Let  the  writ  issue. 


§127     WORKMEN'S  COMPENSATION  AND  INSURANCE.      346 

Dunbar,  C.  J.,  Crow,  Morris,  Ellis,  Mount,  Parker, 
and  Gose,  J.  J.,  concur. 

Chadwick,  J.  (concurring) — This  proceeding  is  pro- 
secuted by  the  relator,  a  simple  contract  creditor  of  the 
State.  There  is  no  party  in  interest  before  us  whose 
interest  it  is  to  challenge  the  act  of  the  legislature.  This 
is  a  moot  case,  pure  and  simple,  and  the  right  of  the 
relator  to  recover  is  in  no  way  affected  by  the  constitu- 
tional questions  raised  by  the  parties  and  discussed  by 
the  court  The  legislature  having  created  the  industrial 
insurance  commission,  its  power  to  organize  can  not  be 
questioned  by  any  one  who  is  not  affected  by  the  terms 
of  the  law,  and  such  expenses  as  it  may  incur  are  proper 
charges  against  the  State  and  may  be  collected  without 
reference  to  the  power  of  the  commission  to  levy  a 
tribute  upon  certain  kinds  of  business,  or  to  make  dis- 
bursement of  the  funds  under  the  provisions  of  the  act. 

Without  questioning  or  discussing  the  conclusions 
of  the  court  upon  the  first  three  propositions  advanced, 
with  all  of  which  I  agree,  the  fourth  proposition  should 
not  now  be  decided  for  the  very  palpable  reason  that 
our  decision  is  binding  upon  no  one,  not  even  upon  the 
court.  No  one  will  contend  that  it  is  of  any  concern  to 
a  furniture  dealer  who  is  seeking  to  collect  his  account 
whether  an  injured  workman  is  to  be  deprived  of  the 
right  to  submit  his  cause  to  a  jury  of  his  peers.  The 
principle  is  too  important  to  be  mooted  by  the  court,  for 
some  day  a  real  party  in  interest  will  be  before  us — 
either  an  employer  who  feels  aggrieved  at  the  operation 
of  the  law,  or  a  workman  who  has  received  injuries 
which  the  accepted  schedules  will  not  compensate;  and 
we  will  be  put  to  the  duty  of  deciding  the  case  without 
reference  to  our  present  decision,  so  that  the  Federal 
questions  involved  may  pass  for  final  hearing  to  the 
Supreme  Court  of  the  United  States. 

The  right  to  recover  damages  for  personal  injuries 
suffered  in  consequence  of  the  negligence  of  another 


347  WASHINGTON  ACT.  §  127 

was  an  admitted  right  at  common  law,  so  that  the  ques- 
tion whether  the  seventh  amendment  to  the  Constitu- 
tion of  the  United  States,  which  preserves  the  right  of 
trial  by  jury  in  all  cases  maintainable  at  common  law 
which  are  begun  in  the  courts  of  the  United  States, 
would  not  compel  a  Federal  court  to  ignore  our  statute, 
could  be  compelled  to  contribute  to  the  indemnity  fund 
and  the  consequent  question,  whether  a  party  assessed 
unless  he  is  to  be  protected  from  all  suits  of  like  charac- 
ter, becomes  most  material,  and  it  is  to  be  hoped  that  we 
will  have  an  early  opportunity  to  meet  these  issues  in  a 
proper  case. 

That  the  people  of  the  State  of  Washington  can 
take  away  a  right  of  action,  or  abolish  the  right  of  trial 
by  jury,  I  have  no  doubt,  but  whether  the  legislature 
can  do  so  without  the  warrant  of  the  whole  people  ex- 
pressed by  way  of  amendment  or  repeal  of  sections  3 
and  21  of  article  1  of  the  State  constitution,  is  a  grave 
question  which  is  not  discussed  in  the  opinion  of  the 
court.  The  right  of  trial  by  jury  has  ever  been  re- 
garded as  the  very  sinew  of  liberty.  It  was  the  cardi- 
nal principle  of  the  great  charter,  and  "It  is  worthy  of 
note  that  all  that  is  extant  of  the  legislation  of  the 
Plymouth  Colony  for  the  first  five  years,  consists  of  the 
single  regulation  'that  all  criminal  facts,  and  also  all 
manner  of  trespasses  and  debts  between  man  and  man, 
shall  be  tried  by  the  verdict  of  twelve  honest  men,  to 
be  impaneled  by  authority,  in  form  of  a  jury  upon  their 
oath.'  (1  Palfrey's  New  England,  340."  Cooley's  Const. 
Limitations  (6th  ed.),  p.  389,  n.) 

The  right  is  asserted  in  every  State  constitution. 
Sec.  21,  supra,  provides  that  "the  right  of  trial  by  jury 
shall  remain  inviolate."  No  distinction  is  made  between 
civil  and  criminal  cases;  indeed  the  additional  text 
would  indicate  that  no  distinction  was  intended.  This 
guarantee  has  been  held  by  this  court  to  apply  to  all 
civil  law  actions  maintainable  at  common  law.  (State 


§  I2/     WORKMEN'S  COMPENSATION  AND  INSURANCE.      348 

ex  rel.  Mullen  v.  Doherty,  16  Wash.  382,  47  Pac.  958, 
58  Am.  St.  39.)  I  am  a  firm  believer  in  trial  by  jury 
and  am  of  equal  faith  that  the  will  of  the  people  as  de- 
clared in  their  written  constitution  is  binding  upon  legis- 
latures as  well  as  courts,  until  the  people  by  like  adop- 
tion express  a  contrary  will.  We  should  not  decide 
otherwise  except  at  the  suit  of  a  proper  party. 

The  present  law  seems  to  be  greatly  to  the  advant- 
age of  the  employer  for  whom  an  easy  method  of  dis- 
charging an  obligation  to  his  injured  employe  is  pro- 
vided, but  whether  the  legislature  can  take  from  the 
workingman  his  right  to  have  the  amount  of  his  com- 
pensation fixed  by  an  authority  less  than  the  very  peo- 
ple, who  have  said  "the  right  of  trial  by  jury  shall  re- 
main inviolate,"  is  for  future  hearing. 

I  have  not  advanced  these  observations  in  the  way 
of  objections,  for  the  result  of  the  court's  opinion  is  a 
consummation  for  which  I  have  devoutly  hoped ;  but  to 
indicate  merely  that  our  decision  upon  the  fourth  prop- 
osition— the  right  of  trial  by  jury — is  not  settled  by 
this  decision  and  should  not  be  so  regarded,  and  further, 
in  the  event  that  it  be  finally  held  that  a  jury  trial  can 
not  be  dispensed  with,  under  our  present  constitution, 
that  the  objection  may  be  easily  overcome  without  do- 
ing violence  to  the  purpose  or  principle  of  the  act,  and 
without  amendment  to  the  constitution,  by  providing 
that,  in  the  event  of  a  dispute  as  to  the  amount  of  com- 
pensation, a  jury  shall  be  called  to  try  that  issue  and 
that  its  verdict  shall  be  conclusive. 

Upon  the  fourth  proposition,  therefore,  I  reserve  my 
opinion  until  such  time  as  its  expression  will  have  the 
force  of  law. 

There  being  no  question  that  the  relator  has  a  right 
to  recover  the  amount  due  on  its  account,  it  follows  that 
the  writ  should  issue. 


349  WASHINGTON  ACT  §  128 

§  128.  Rules  and  directions. — Sections  21  to  26 
of  the  Washington  Act  provide  for  the  creation  of  the 
Washington  State  Industrial  Insurance  Department  and 
appointment  of  Commissioners  to  administer  the  same, 
and  authorizes  the  Commissioners  to  prescribe  appro- 
priate rules  and  directions  for  the  proper  administra- 
tion of  the  law,  both  respecting  the  employers  and  em- 
ployes covered  by  the  same.  These  rules  and  directions 
are  set  forth  in  full  in  the  following  sections : 

§  129.  Rules  and  direction  for  employers. — 
1.  Whenever  any  accident  occurs  to  any  workman  (in 
your  plant  or  establishment)  it  shall  be  the  duty  of  the 
employer  to  at  once  report  such  accident  to  the  Com- 
mission, for  which  use  Industrial  Insurance  Blank  Form 
(k),  §  143.  Blank  reports  for  such  purpose  may  be 
secured  by  applying  for  same  to  the  Commission  or  at  one 
of  the  branch  offices  herinafter  mentioned.  These  re- 
ports must  be  filled  out  accurately,  immediately  and  in 
detail  as  required  by  section  14  of  the  law. 

2.  Where   an   injured  workman  files   a   claim   for 
compensation,  it  shall  be  the  duty  of  the  physician  and 
also  of  the  employer  to  inform  and  advise  the  injured 
workman    (or   his   relatives   or  dependents  in  case  of 
death)  of  his  rights  under  the  Compensation  Law  and 
to  lend  all  necessary  assistance  in  aiding  the  workman 
in  making  his  claim  and  such  proof  as  the  Commission 
may  require.    Such  assistance  is  to  be  "without  charge 
to  the  workman"  as  required  and  provided  in  section 
12  of  the  law.     Blanks  for  filing  claims  for  compensa- 
tion (Form  (1),  §  144)  will  be  sent  to  the  different  em- 
ployers, and  if  not,  may  be  secured  by  writing  the  Com- 
mission, or  at  any  branch  office   of  the   Commission. 
Each  employer  should  have  these  and  other  blanks  on 
hand  at  all  times  so  that  prompt  reports  may  be  made 
to  the  Commission  of  all  accidents. 

3.  Each  employer   should   assist   his   injured  em- 


§  129     WORKMEN'S  COMPENSATION  AND  INSURANCE.      350 

ployes  in  securing  their  rights  under  the  law.  The  en- 
tire matter  is  between  the  employer,  employ^  and  the 
State.  In  assisting  your  injured  workmen  and  doing 
all  that  you  can  for  their  benefit  or  relief,  you  in  no  way 
injure  or  prejudice  yourself.  Such  assistance  will  tend 
to  produce  more  cordial  relations  between  employer  and 
workmen  and  greatly  expedite  and  facilitate  the  opera- 
tion and  administration  of  the  Compensation  Law.  In 
all  matters  of  doubt  or  dispute  address  the  Commission 
direct.  No  claim  for  compensation  is  valid  unless  filed 
within  one  year  after  date  of  injury  and  all  workmen 
should  be  so  advised. 

4.  Section  11  of  the  law  specifically  provides  that 
no  employer  or  workman  shall  exempt  himself  from  the 
burden  or  waive  the  benefits  of  the  law  by  any  contract, 
rule  or  regulation,  and  any  such  contract,  rule  or  regu- 
lation shall  be  void. 

5.  Employers  should  inform  and  advise  their  in- 
jured workmen  that  section  10  of  the  law  provides  that 
no  money  paid  or  payable  under  the  Compensation  Law 
shall,  prior  to  issuance  and  delivery  of  the  warrant,  be 
assigned,  charged,  or  even  be  taken  in  execution  or  at- 
tached and  garnished.    Any  such  assignment  or  charge 
shall  be  void. 

6.  Section  9  of  the  law  relating  to  "Employer's 
responsibility  for  safeguards"  and  inflicting  heavy  pen- 
alties in  case  of  injury  due  to  the  absence  of  safeguard, 
should  be  closely  observed.     All  statutory  safeguards 
should  be  maintained  and  the  departmental  rulings  of 
the  State  Labor  Commission  and  of  this  Commission 
carefully  observed.     Otherwise  serious  penalties  may 
be  imposed  in  case  of  accident.     If  any  workman  re- 
move any  such  safeguard  this  Commission  should  be 
advised. 

7.  Section  8  of  the  law  relating  to  employers  who 
fail  or  refuse  to  make  their  payments  into  the  "accident 
fund"  should  be  carefully  observed.    Default  in  the  pay- 


35  J  WASHINGTON  ACT.  §  1 29 

ment  of  any  premium  means  great  risk  and  peril  on  the 
part  of  the  defaulting  employer. 

8.  Employers   should   notify   this   Commission   of 
any  work  or  establishment,  which  because  of  poor,  care- 
less or  negligent  management,  is  unduly  dangerous  and 
hazardous   in   comparison   with   other  like   or   similar 
works  or  establishments.     This  notice  is  necessary  in 
order  to  protect  the  careful  employer. 

9.  The  attention  of  employers  is  directed  to  section 
16  of  the  law  which  imposes  an  extremely  heavy  pen- 
alty for  misrepresenting  to  the  Commission  the  amount 
of  the  payroll  upon  which  the  employer's  premium  un- 
der the  law  is  based.    The  employer  who  so  misrepre- 
sents is  liable  to  the  State  ten  (10)  times  the  amount 
of  the  difference  in  premium  paid  and  the  amount  the 
employer  should  have  paid.     The  traveling  auditors  of 
the  Commission  will  at  all  times  assist  the  employers  in 
computing  their  premiums  under  the  law.     If  any  em- 
ployer in  your  line  of  business  or  class  misrepresents  his 
payroll  you  should  so  advise  the  Commission.     Such 
misrepresentation  means  loss  to  you  eventually  and 
not  to  the  State,  as  thereby  your  particular  class  fund  is 
diminished. 

10.  Section  19  of  the  Act  provides  that  any  em- 
ployer and  his  workmen  engaged  in  works  not  extra 
hazardous  (such  as  clerical  help,  etc.,  etc.),  may  jointly 
elect  to  accept  the  provisions  of  the  act,  and  if  so,  are 
then  entirely  within  the  terms  of  the  law.    The  rate  of 
premium  on  such  non-hazardous  employment  is  1.35  per 
cent,  of  the  payroll,  to  be  paid  quarterly,  and  there- 
after monthly  as  required.     Blanks  for  elective  adop- 
tion covering  non-hazardous  work  may  be  secured  by 
addressing  the  Commission  or  at  any  branch  office  of 
the   Commission,  requesting  Blank   Form   (e),  §   137. 
Whenever  the  workman  may  be  subjected  to  danger  or 
hazard  it  is  highly  desirable  that  both  he  and  the  em- 


§i2Q      WORKMEN'S  COMPENSATION  AND  INSURANCE.      352 

ployer  come  under  the  Compensation  Act,  thus  affording 
mutual  protection. 

11.  The  Compensation  Act  in  no  way  interferes 
with  any  of  the  usual  hospital  arrangements  between 
employers  and  employes.     Whenever  possible  it  is  de- 
sirable that  such  arrangements  be  continued  in  order 
that  injured  workmen  may  receive  immediate  hospital 
and  medical  attention. 

12.  The  employment   of  competent  foremen  and 
superintendents  and  the  exercise  of  care  in  the  man- 
agement of  all  establishments  within  the  scope  of  the 
law  is  necessary  in  order  to  reduce  accidents  to  a  mini- 
mum.    The  employer's  contributions  to  the  "accident 
fund"  created  by  the  Compensation  Law  will  depend 
entirely  upon  the  number  of  accidents  to  workmen. 

13.  When  any  new  industry  is  started  or  any  sus- 
pended  business   resumes   operation   the    Commission 
should  be  advised  so  that  payrolls  can  be  secured  and 
the  new  or  revised  industry  subjected  to  the  require- 
ments of  the  Compensation  Law. 

14.  Employers  desiring  copies  of  the  Workmen's 
Compensation  Act  may  secure  the  same  by  applying  to 
the  Commission.    Any  other  data  with  reference  to  the 
law,  its  administration  or  operation,  may  be  secured 
from  the  Commission. 

15.  Branch  offices  of  the  Commission  are  located 
at  524  Haight  Building,  Seattle,  No.  1009  South  "A" 
Street,  Tacoma,  and  410  Fernwell  Building,  Spokane. 
Blanks,  copies  of  the  law,  data,  information,  etc.,  can  be 
secured  at  any  time  at  these  offices. 

16.  All  statutes  relating  to  safeguards  and  protec- 
tion of  machinery  and  all  departmental  rulings  or  regu- 
lations with  reference  thereto  should  be  carefully  com- 
plied with  and  observed.     If  accidents  are  reduced  to  a 
minimum,  then  necessarily  the  enforced  contributions 
of  employers  under  the  Compensation  Law  will  be  re- 
duced accordingly.     One  of  the  chief  purposes  of  the 


353  WASHINGTON  ACT.  §  130 

law  is  to  reduce  and  minimize  accidents  and  conserve 
human  life  and  limb.  Employes  as  well  as  employers 
should  constantly  bear  this  fact  in  mind. 

17.  Section  15  of  the  law  provides  that  "the  books, 
records  and  payrolls  of  the  employer  pertinent  to  the 
administration  of  the  Act  shall  always  be  open  to  in- 
spection by  the   department  or  its   traveling  auditor, 
agent  or  assistant,  for  the  purpose  of  ascertaining  the 
correctness  of  the  payroll,  the  men  employed  and  such 
other  information  as  may  be  necessary  for  the  depart- 
ment and  its  management  under  this  Act."    Refusal  to 
permit  such  inspection  is  made  a  crime. 

18.  The  Commission  will  be  in  session  on  Monday 
of  each  week,  at  which  time  objections,  criticisms,  sug- 
gestions, protests,  etc.,  etc.,  will  be  heard  and  consid- 
ered.    Employers  and  employes  having  matters  to  pre- 
sent to  the  Commission  may  do  so  at  such  meetings. 

§  130.  Rules  and  directions  for  workmen. — 
1.  Any  injured  workman  entitled  to  compensation  un- 
der the  law  must  file  at  once  with  the  Commission  his 
claim  for  compensation  on  Form  (1),  §  144.  These  claim 
blanks  can  be  secured  by  writing  direct  to  the  Commis- 
sion or  by  applying  at  either  of  the  following  offices: 
524  Haight  Building,  Seattle;  No.  1009  South  "A" 
Street,  Tacoma;  410  Fernwell  Building,  Spokane. 
Claims  for  compensation  must  be  filled  out  carefully 
and  accurately. 

2.  The  injured  workman  must  also  file  at  once  with 
the  department  the  certificate  or  report  of  the  physician 
who  attended  him.     This  report  is  Form  (m),  §  146,  of 
Commission,  and  may  be  secured  by  workmen  or  phy- 
sicians at  either  of  the  above  offices. 

3.  Section  12  of  the  law  requires  the  attending  phy- 
sician to  assist  the  injured  workman  in  making  applica- 
tion for  compensation. 

4.  In  case  of  death  the  relatives  or  dependents  of 

23— BOTD  W  C 


§  130      WORKMEN'S  COMPENSATION  AND  INSURANCE.      354 

the  deceased  workman  must  file  claim  for  compensation 
upon  blank  forms  to  be  furnished  by  the  Commission. 

5.  No  claim  for  compensation  will  be  considered 
and    no    compensation    awarded    unless  all    necessary 
blanks  furnished  and  required  by  the  Commission  are 
filled  out  accurately,  carefully  and  completely  to  the  sat- 
isfaction of  the  Commission. 

6.  No  claim  for  compensation  by  any  injured  work- 
men will  be  considered  unless  filed  within  one  year  after 
date  of  injury.  (Section  12). 

7.  Whenever   requested   by   the    Commission    any 
injured  workman  shall  submit  to  a  medical  examination 
by  one  of  the  Commission's  examining  physicians.     In 
case  of  refusal  to  submit  to  such  examination  all  com- 
pensation will  be  suspended  and  nothing  further  will  be 
done  in  the  consideration  of  the  claim  for  compensation, 
until  the  necessary  and  required   official  examination 
occurs. 

8.  In  case  of  removal  of  any  safeguard  or  protec- 
tive device  on  machinery  by  the  superintendent,  fore- 
man or  any  other  person,  the  Commission  should  be  im- 
mediately notified.     If  any  injury  results  to  any  work- 
man because  of  the  removal  of  any  safeguard  by  him- 
self, then  in  such  case  the  workman's  compensation  is 
reduced  ten  per  cent. 

9.  In  case  of  injury  the  workman  should  consult 
the  employer  or  address  this  department  at  once  for 
blank  forms  upon  which  to  make  claim  for  compensa- 
tion. Litigation  under  the  law  is  unnecessary  and  would 
be  useless. 

10.  Whenever  necessary  the  Commission  reserves 
the  right  to  supervise  the  medical,  surgical  and  hospital 
treatment  of  the  injured  workman.  (Section  24). 

11.  All  workmen  should  assist  each  other  and  their 
employers  in  the  earnest  attempt  to  avoid  accidents. 
Fewer  accidents  mean  less  pain,  happier  homes  and 
greater  prosperity. 


355  WASHINGTON  ACT.  §  131 

§  131.     Form  of  general  directions  to  employes  to 
be  posted  on  all  floors  of  plant. 

Workmen's  Compensation  Act  of  Washington  requires  every 
employer  to  post  conspicuously  on  each  floor  of  his  plant,  factory  or 
place  of  business: 

"On  and  after  October  1st,  1911,  all  workmen  employed  on  or 
about  power  driven  machinery  or  in  any  dangerous  work  are 
entitled  to  receive  compensation,  if  injured,  according  to  the  law. 

WHAT  TO  DO  IF  INJURED. 

"1.    Make  out  a  claim  AT  ONCE  or  have  some  one  do  it  for  you. 

"Use  blank  (1)  which  you  can  get  from  your  employer,  or 
from  the  Industrial  Insurance  Commission  in  Olympia,  or  from  any 
of  its  branch  offices  as  follows: 

"Seattle,  524  Haight  Building. 

"Tacoma,  506  Bank  of  California  Building. 

"Spokane,  410  Fernwell  Building. 

"Fill  out  and  sign  claim  and  send  back  to  main  office  in  Olympia. 

"2.  Get  the  doctor  who  attends  you  to  make  out  a  report  and 
send  it  in.  This  blank  report  can  be  secured  from  any  of  the  above 
offices.  You  may  call  any  doctor  you  like.  Section  12  of  the  law 
requires  the  attending  physician  to  help  you  in  making  out  these 
blanks. 

"3.  If  possible,  get  a  report  of  witnesses  who  saw  the  accident — 
Form  (o).  This  blank  can  be  secured  at  above  offices  and  may 
save  trouble  later. 

"4.  In  case  of  death,  relatives  or  dependents  must  make  the 
claim  and  blanks  will  be  furnished  them  when  requested. 

"5.  Fill  out  the  blanks  fully  and  carefully.  Action  upon  your 
claim  wil  be  delayed  unless  reports  are  made  out  promptly  and 
correctly. 

"6.  Make  out  your  claim  AT  ONCE.  Prompt  action  will  assist 
you  in  getting  early  compensation. 

"7.  Don't  hire  a  lawyer.  Ask  the  assistance  of  your  employer 
and  the  commission  first.  If  you  come  under  the  law  and  get  hurt 
while  doing  your  work,  you  will  get  your  money  without  a  lawsuit. 

GENERAL  DIRECTIONS. 

"Don't  take  off  any  safeguard  or  protective  device.  If  you  do, 
and  then  get  hurt,  it  decreases  or  lessens  your  compensation  10  per 
cent.  (See  Sec.  9  of  the  law.) 

"If  the  superintendent,  foreman  or  any  other  person  removes  a 
safeguard,  report  the  fact  to  the  Commission.  Don't  remove  it  your- 
self and  don't  let  anyone  else  remove  it. 

"Don't  take  any  chances  with  machinery.  If  you  injure  yourself 
Intentionally  you  are  not  entitled  to  any  compensation. 

"If   required,   you   must   allow    the    Commission's   physician   to 


§  132      WORKMEN'S  COMPENSATION  AND  INSURANCE.      356 

examine  you,  but  this  examination  will  not  cost  you  any  money.  It 
is  paid  for  by  the  State.  Don't  refuse  to  be  examined  or  your  claim 
will  not  be  considered. 

"Keep  blanks  on  hand  or  ask  your  employer  to  keep  them  on 
hand  for  you.  They  don't  cost  him  anything,  and  the  sooner  you 
make  a  proper  claim,  the  sooner  it  will  be  settled. 

"Don't  hesitate  to  lend  a  hand  when  anyone  is  hurt.  It  is  to 
your  interest  and  to  your  employer's  interest  to  decrease  or  lessen 
the  number  of  accidents  and  deaths  and  keep  as  many  workmen  at 
work  as  possible. 

"The  state  will  try  and  give  you  reasonable  compensation  in  case 
of  injury.  If  you  do  not  think  it  is  sufficient,  remember  that  it  is 
much  better  than  lawsuits  and  delays  under  the  old  system. 

^INDUSTRIAL  INSURANCE  COMMISSION, 

GEO.  A.  LEE.  *"  Of  Washington. 

C.  A.  PRATT, 

J.  H.  WALLACE, 

Commissioners. 

§  132.    Formal    procedure — List    of    forms. — The 

Industrial  Insurance  Commission  of  Washington,  re- 
sponding to  the  duties  imposed  upon  it  by  the  Wash- 
ington Insurance  Act,  has,  as  a  part  of  the  scheme  of 
administration  devised  by  it,  prescribed  twenty-one 
forms  which  are  required  to  be  used  by  the  employers 
and  injured  employes  covered  by  the  said  act,  together 
with  certain  instructions  and  charts  which  are  desig- 
nated as  follows: 

(a)  Report  of  actual  payroll  (by  employer)  ; 

(b)  Contractors'  statement  of  wages  (by  employer)  ; 

(c)  Monthly  statement  of  city  of  ......  of  county 

of  ......  (by  employer)  ; 

(d)  Notice  of  assessment  (to  employer) ; 

(e)  Elective  adoption  of  the  provisions  of  the  In- 
dustrial Insurance  Act  (by  employer)  ; 

(f)  Demand  for  quarterly  payment  required  by  the 
Workmen's  Compensation  Act  of  the  State  of  Wash- 
ington (to  employer) ; 

(g)  Monthly  statement  (by  employers) ; 

(h)  Alphabetical  list  of  industries  with  correspond- 
ing rates  and  classification  (to  employer) ; 


357  WASHINGTON  ACT.  §  132 

(i)  Instructions  to  cities,  counties,  school,  port, 
water-way,  drainage,  or  other  municipal  corporation ; 

(j)  Letter  of  instruction  to  employers  and  em- 
ployes ; 

(k)  Employer's  report  of  accident  to  employe  with 
chart ; 

(1)  Workmen's  claim  for  compensation  with  instruc- 
tions to  injured  workmen; 

(m)  Report  of  attending  physician  with  charts; 

(n)  Surgical  discharge  report; 

(o)  Report  of  witnesses  with  instructions; 

(p)  Surgeon's  special  report  with  charts; 

(q)  Proof  of  death  to  be  filled  out  by  attending  phy- 
sician of  deceased; 

(r)  Proof  of  death  from  undertaker; 

(s)  Dependent's  claim  for  compensation; 

(t)  Affidavit  of  claimant  for  compensation  by  sur- 
vivors of  deceased  workmen; 

(u)  Summary  and  award; 

(v)  Partial  payment  voucher,  permanent  partial  dis- 
ability— Full  payment,  total  temporary  disability — Par- 
tial payments; 

(vv)  Form  of  partial  payment  voucher — Total  tem- 
porary disability — Monthly  allowance. 

(w)  Form  of  pension  voucher — Permanent  total 
disability. 

(ww)  Form  of  pension  voucher — Survivors  of  de- 
ceased workman. 

(x)  Form  of  burial  expense  voucher — Account  of 
deceased  workman. 

(y)  Form  of  final  settlement  voucher. 

(z)  Form  of  election  to  receive  compensation  and 
assignment  of  claim — Injuries  by  defaulting  employer. 

(zz)  Election  to  receive  compensation  and  assign- 
ment of  claim — Injury  by  other  than  employer. 

These  forms  are  given  in  full  in  the  succeeding  pages 
in  the  order  named  above. 


§  133      WORKMEN'S  COMPENSATION  AND  INSURANCE.      358 
§  133.     Form  of  report  of  actual  payroll  (a)  : 


a 

, 

< 

E 

|JI 

J 

^ 
8 

(4 

i 

. 

is 

E 

1 

1 

•o 

a 

§§ 

C 

e 

1 

' 

i 

I    C 

.i 

1 

1 
1 

Premium 

a 

9) 

CJ 

o 

ft 

^  5 

'^"a 

!=  | 

9  "s 

1 
1 

e 

. 

I 

sj 

0) 

1 

NON-HAZA] 

(Nature 

+-> 

•4-> 

a 

I 

Hazardous 
Payrolls 

• 
• 

'-C    >> 

E 
8 

$xo 

• 

IH 

"S    •>->     4) 

1 

)] 

1 

S 

S 

<<  » 
h1"1 

M 

* 
. 

C    -    - 

i       0       = 
§      — 

to  S 

Official  p 

•; 

— 

0    S 

o 



•j 

i 
^ 
2 

1 

i 

!' 

i 

= 
^ 

p- 

K 

3 
•§ 

' 

0) 

M 

m 

1 

• 

,      i 

'3 

i 

: 

| 

£ 
T 

IE 
p 

~    N 

|m 

a 

« 

. 

a 

3 
1  * 

p 

'. 

of 

if 

• 

S 

i 

e 

• 

. 

a  § 

C3 
ILi 

EH 

CQ  0) 
P., 
O  o 

„ 

C 

1 
1 

8 
< 

'3 

" 

II 

C3     a; 

a  fa 

0)    5 

HAZABI 

(Nature 

1 

I 

a   a 

OB      £ 

C 

, 

[ 

§ 

i 

o  a 

c 

1 

| 

C, 

P 

'7. 

V; 

1 

i 
0 

s 

Week  Endinir  — 

1 

'C 

x 

M 
g 
d 

t 
£ 

1 

I 
i 

i 

..   «   P 
H  1 

1*1 

| 

S 
IS 

*o 

C 

a 

|  | 

359  WASHINGTON   ACT.  §  1 34 

§  134.  Form  of  contractor's  statement  of  wages  (b)  : 

Month  of ,  19 

I, 

We, ,  do  hereby  certify  that  the  following  is  a  com- 
plete, true  and  correct  statement  of  the  amount  of  wages  paid  by 

me  or  my  sub-contractors  during  the  month  of ,  19__. 

for  labor  performed  under  my  contract  dated ,  19 

for    ,  at    

(Fully   describe  nature   of  work)  City 

for  the 

•    County  of 

Business  Address   __Naines  of  Sub-Contractors 


DESCRIPTION    OF    WORK 


Class 


Rate 
Pet. 


| —    8  Asphalt  Laying _     _  3 

6  Blasting     5 

5  Brick    Work    5 

2  Bridges     Cj 

5  Carpenter  Work,  not  otherwise  specified 3j 

5  Concrete    Building    (including    removing    forms) 5~ 

8  Concrete  Laying  In  Street  Paving 3 

5  Concrete   Laying   in   Floors   and   Foundations 3 

3  Ditches  and  Canals  (other  than,  irrigation  without  blasting) Gj 

6  Electric  Light  or  Power  Plants  or  Systems  (construction  work)5 
13  Electric  Light  or  Power  Plants  or  Systems  (operation  of  same) -4 

1  Excavations,    not    otherwise    specified 4 

5  Iron  or  Steel  Structures  or  Parts 8 

5  Galvanized  Iron  or  Tin  Work 5 

5  Gas    Works    or   Systems    (construction) 5 

19  Gas  Works  or  Systems   (operation) 3 

4  House     Wrecking CJ 

6  House   Heating  or  Ventilation  Systems 2 

5  Inside    Plumbing 2 

6  Installation   of   Machinery    (Includes   foundation) 3 

6  Installat'n  of  Elec.  Apparatus  or  Fire  Alarm  Systems  in  Bldgs._2 

5  Lathing     2 

5  Marble,   Stone  or   Brick   Work 5 

5  Marble,   Stone  or  Tile  Setting   (inside  work) 3 

5  Ornamental  Metal   Work   in   Buildings 3J 

5  Outside   Plumbing   Work    (includes   roughing   in) 5 

5  Paper   Hanging   2 

5  Painting   Buildings   or   Structures 3 

2  Paving   and    Repair,    brick  or  block 2 

3  Pile    Driving 5 

5  Plastering     2 

8  Road  Making   (includes  plank  streets  and  sidewalks) 2 

8  Road    Making,    with   blasting 5 

5  Roof    Work 5 

1  Sewers 6 

8  Street   or  Other  Grading 3 

2  Trestles    " 

6  Water   Works  or   Systems  (construction) 

23  Water  Works  or  Systems    (operation) —2 

Attest:  (Signature) 


§  135     WORKMEN'S  COMPENSATION  AND  INSURANCE.      360 


§  135.     Form  of  monthly  statement  of  city  (c)  : 

The  following  report  Is  made  to  the  Industrial  Commission  of  the 
State  of  Washington  certifying  that  the  following  is  a  complete  list 

of  all  the  departments  of  the  city  of ,  county  of , 

having  employes  under  the  scope  of  the  Wokmen's  Compensation 
Act,  together  with  a  statement  of  the  wages  received  by  them  for 
the  month  of 


----- 


CONTRIBUTION 


Signature    

Official   Title    

§  136.     Form  of  notice  of  assessment  (d)  : 

Date 

To 

DEMAND  is  hereby  made  for  contribution  on  your  payroll  as 
required  by  Section  4  of  the  Workmen's  Compensation  Act  (Chap- 
ter 74,  Laws  1911),  at  the  rate  therein  provided,  into  the  Accident 
Fund  of  your  Class: 

For  the  month  of $ 

Less  credits  shown  on  department's  records $ 

Net  amount  to  be  forwarded $ 

This  sum  of  $ now  demanded  must  be  received  at 

Olympia  thirty   (30)   days  from  the  date  above  noted;    otherwise 
you  will  be  in  default  and  subject  to  the  penalties  of  the  Act. 

Remittance  may  be  made  by  check,  draft,  or  money  order, 
payable  to  "Industrial  Insurance  Commission,"  and  forwarded  to 
Olympia,  Washington. 

This  assessment  is  made  upon  an  estimated  monthly  payroll 
based  on  the  average  payroll  of  your  establishment,  determined  by 
the  actual  audit  for  October,  November  and  December,  of  firms 
listed  in  1911.  Should  your  payroll  at  this  time  be  larger  or  small- 
er than  the  estimate,  an  adjustment  will  be  made  after  December 
31st,  3912,  and  each  establishment  will  be  charged % 


WASHINGTON  ACT.  §  136 

on  as  many  twelfths  of  the  entire  year's  payroll  as  there  have 
been  monthly  calls. 

The  present  assessment  is  made  on  account  of  the  funds  of  the 
Class  having  been  depleted  below  the  point  of  reasonable  safety  by 
compensation  awards  made  employe's  for  accidents  occurring  in 
establishments  of  members  of  this  class  only. 

INDUSTRIAL  INSURANCE  COMMISSION. 
Attest:  By 

Chairman. 

Chief  Auditor. 

"Sec.  8.    Defaulting  Employers. 

"If  any  employer  shall  default  in  any  payment  to  the  accident 
fund  hereinbefore  in  this  act  required,  the  sum  due  shall  be  col- 
lected by  action  at  law  in  the  name  of  the  State  as  plaintiff,  and 
such  right  of  action  shall  be  in  addition  to  any  other  right  of 
action  or  remedy.  In  respect  to  any  injury  happening  to  any  of 
his  workmen  during  the  period  of  any  default  in  the  payment  of 
any  premium  under  section  4,  the  defaulting  employer  shall  not,  if 
such  default  be  after  demand  for  payment,  be  entitled  to  the 
benefits  of  this  act,  but  shall  be  liable  to  suit  by  the  injured  work- 
man (or  the  husband,  wife,  child  or  dependent  of  such  workman  in 
case  death  result  from  the  accident),  as  he  would  have  been  prior 
to  the  passage  of  this  act. 

In  case  the  recovery  actually  collected  in  such  suit  shall  equal 
or  exceed  the  compensation  to  which  the  plaintiff  therein  would  be 
entitled  under  this  act,  the  plaintiff  shall  not  be  paid  anything  out 
of  the  accident  fund;  if  the  said  amount  shall  be  less  than  such 
compensation  under  this  act,  the  accident  fund  shall  contribute  the 
amount  of  the  deficiency.  The  person  so  entitled  under  the  pro- 
visions of  this  section  to  sue  shall  have  the  choice  (to  be  exercised 
before  suit)  of  proceeding  by  suit  or  taking  under  this  act.  If  such 
person  shall  take  under  this  act,  the  cause  of  action  against  the 
employer  shall  be  assigned  to  the  State  for  the  benefit  of  the 
accident  fund.  In  any  suit  brought  upon  such  cause  of  action  the 
defense  of  fellow  servant  and  assumption  of  risk  shall  be  inad- 
missible, and  the  doctrine  of  comparative  negligence  shall  obtain. 
Any  such  cause  of  action  assigned  to  the  State  may  be  prosecuted 
or  compromised  by  the  department  in  its  discretion.  Any  compro- 
mise by  the  workman  of  any  such  suit,  which  would  leave  a  defi- 
ciency to  be  made  good  out  of  the  accident  fund,  may  be  made  only 
with  the  written  approval  of  the  department." 

§  137.  Form  of  elective  adoption  of  the  provisions 
of  act  (e) : 

We,  ,  employer,  and 

employe's  of  said  employer, 

do  hereby  jointly  and  mutually  agree  to  and  do  hereby  elect  and 


§138      WORKMEN'S  COMPENSATION  AND  INSURANCE.      362 

accept  each  and  all  of  the  provisions  of  the  Industrial  Insurance 
Act  of  the  State  of  Washington  (Chapter  74,  Session  Laws  of  1911), 
and  do  hereby  subject  ourselves  irrevocably  and  completely  to  all 
of  the  provisions  of  said  law,  to  all  intents  and  purposes  as  if  we 
had  been  originally  included  within  its  terms. 

In  Witness  Whereof,   We  have  hereunto  set  our  hands,   this 
day  of ,  19— 


Employer. 
By 


Employes  of  said  employer.  Employe's  of  said  employer. 

Witnessed  by 


The  above  election  and  adoption  is  hereby  approved  this 

day  of ,  19 

INDUSTRIAL  INSURANCE  COMMISSION. 

By 

Chairman. 

(ELECTIVE  ADOPTION  OF  ACT)  (Sec.  19,  Chap.  74,  Session 
Laws  of  1911).  "Any  employer  and  his  employes  engaged  in  works 
not  extra  hazardous,  may  by  their  joint  election,  filed  with  the 
department,  accept  the  provisions  of  this  act,  and  such  acceptances, 
when  approved  by  the  department,  shall  subject  them  irrevocably 
to  the  provisions  of  this  act  to  all  intents  and  purposes  as  if  they 
had  been  originally  included  in  its  terms.  Ninety  per  cent,  of  the 
minimum  rate  specified  in  section  4  shall  be  applicable  to  such  case 
until  otherwise  provided  by  law." 

§  138.  Form  of  demand  for  first  quarterly  payment 
required  by  act  (f)  : 

To  the  Industrial  Insurance  Commission,  Dr. 

Olympia,  Washington. 

As  required  by  law,  demand  is  hereby  made  upon  you  for  the 
payment  of  $ ,  the  same  representing  your  first  or  pre- 
liminary payment  into  the  "Accident  Fund"  created  by  the  Work- 
men's Compensation  Law  (Ch.  74,  Session  Laws  of  1911),  and  is 

based  upon  data  and  payrolls  for  the  months  of ,  

and , ,  heretofore  received  from  you  by  this  office. 

This  first  payment  covers  your  ,  and 


(19 )  payrolls.    At  the  end  of  each  year  an  adjustment  will  be 

made  upon  the  basis  of  the  actual  payroll  for  the  year,  and  your 


363  WASHINGTON  ACT.  §  J37 

contributions  as  required  by  the  law  will  be  based  upon  your  actual 
yearly  payroll. 

This  first  quarterly  payment  will  be  sufficient  until  such  time 
as  the  accidents  occurring  in  your  particular  class  have  depleted  the 
fund  to  such  an  extent  that  further  payments  are  required. 

Under  Section  4  of  the  law,  the  first  payment,  herein  and  hereby 

demanded,  must  be  received  in  this  office  on  or  before ; 

otherwise,  you  will  be  in  default  and  subject  to  the  serious  perils 
and  penalties  of  Section  8,  of  the  act  relating  to  "defaulting  em- 
ployers." 

This  notice  to  you  is  a  "demand  for  payment"  as  prescribed  in 
Section  8  of  said  law.  No  further  demand  will  be  made  upon  you  for 
this  first  quarterly  payment,  and  prompt  attention,  therefore,  is 
extremely  important. 

Yours  very  truly, 

Industrial  Insurance  Commission. 

By 

Chairman. 

Attest: 

The  amount  herein  demanded  as  the  first  quarterly  payment  is 
the  true  and  correct  amount  under  the  law,  and  has  been  computed 
on  the  basis  of  data  and  payrolls  of  the  above  firm,  heretofore  sub- 
mitted and  on  file  in  this  office. 


Chief  Auditor,  Industrial  Insurance  Commission. 

§  139.     Form  of  monthly  statement  (g) : 

The  following  report  is  made  to  the  INDUSTRIAL  INSUR- 
ANCE COMMISSION  of  the  State  of  Washington,  showing  names 
and  payrolls  of  all  contractors  engaged  in  public  work  during  the 
month  of__  — ,  for  the  City  of ,  County  of 


5 

5 

0 

9 

i 

fc 

h 

• 

• 

O 

• 

P5 

2 

j. 

si 

a 

1 

^  5 

CONTRAC" 

Improvemer 
Ordinance 

643 

I! 

CHARACT 

Number  ol 
Employees 

3 
KS 

~t    O 

Is 

1 

3 

V 

I 

Amount  o 
ContrlbutI 

« 
^ 

£ 

Warrant 
Number 

\ 

Signed   by   — 
Official  Title 


§  140      WORKMEN'S  COMPENSATION  AND  INSURANCE.  364 

§  140.  Alphabetical  list  of  industries  with  rates 
and  classification  (h). — The  following  is  an  alphabeti- 
cal list  of  the  industries  comprehended  in  the  act,  to- 
gether with  the  rate  of  contributions  that  they  bear,  and 
the  class  in  which  they  are  placed: 

Class.  Pet, 

Advertising  signs  5  .035 

Asphalt  (manufacturing)  30  .025 

Asphalt  laying 8  .030 

Automatic  sprinklers  (installation  of) 6  .030 

Barrel    29  .025 

Basket   29  .025 

Belts,  putting  up  for  machinery 6  .030 

Blast  furnaces   (construction) 5  .040 

Blast  furnaces  (operating) 18  .030 

Blinds    29  .025 

Boat  building  (with  scaffolds) 9  .045 

Boat  rigging 9  .030 

Boilers,  covering 6  .030 

Boilerworks   34  .020 

Bottling  works  37  .020 

Box   29  .025 

Brass  (manufacturing)  34  .020 

Breakwaters     3  .050 

Breweries   37  .020 

Brick  (manufacturing)  35  .020 

Brickettes    (manufacturing)    36  .020 

Brickwork   (construction)    5  .050 

Bridges   (construction)  2  .065 

Bridgework    27  .025 

Brush  (working  in)  38  .015 

Building  hothouses   5  .020 

Building  material  (not  otherwise  specified) : 31  .025 

Cable  railways,  with  (rock  work  or  blasting) 6  .050 

Cable  railways,  without  (rock  work  or  blasting) 6  .035 

Canal,  other  than  irrigation  or  docks  with  or  without 

blasting   3  .065 

Canneries  of  fruit  or  vegetables , 32  .025 

Canneries  of  fish  or  meat  products 33  .025 

Carpenter  work  (not  otherwise  specified) 5  .035 

Cement  (manufacturing)   31  .025 

Chimneys — metal,  concrete  or  brick 5  .050 

Cloth   (working  in) 38  .015 

Coal  mines  16  .030 

Cold  storage  plants  (refrigeration) 44  .020 


WASHINGTON  ACT.  §  140 

Class.  Pet. 

Cooperage  . 29  .025 

Concrete  chimneys 5  .050 

Concrete  buildings 5  .050 

Concrete  laying  in  floors  or  foundations 5  .030 

Concrete  laying  in  street  paving 8  .030 

Condensed  milk 40  .015 

Conduits  (placing  wires  in) 6  .030 

Copper   (manufacturing)    34  .020 

Cordage    (manufacturing)   38  .015 

Creameries    40  .015 

Creosoting  works 47  .025 

Dock  excavations 3  .065 

Door   29  .025 

Dredges  (making) 27  .025 

Dredges    (operation)    12  .050 

Drilling  wells 1  .020 

Drydocks  12  .050 

Dynamos  (installing) 6  .030 

Earthenware  (manufacturing)  35  .020 

Electric  light  and  power  plants  or  systems  (construction)     6  .050 

Electric  light  or  power  plants  or  systems  (operating) 13  .040 

Electric  railways  (with  rock  work  or  blasting) 6  .050 

Electric  railways  (without  rock  work  or  blasting) 6  .035 

Electric  systems  (not  otherwise  specified) 13  .020 

Electrical  apparatus  (installing  systems  in  buildings) 6  .020 

Elevators,  freight  or  passenger 5  .050 

Electrotyping  41  .015 

Engraving  41  .015 

Excavations  not  otherwise  specified 6  .040 

Excelsior   (manufacturing)   29  .020 

Ferries  20  .030 

Fertilizer 25  .025 

Fire  alarm  (installing  systems  in  buildings) 6  .020 

Fire  clay  (manufacturing) 35  .020 

Fire  escapes 5  .065 

Fireproofing  of  buildings 5  .050 

Fireproof  doors  or  shutters  (erecting) 5  .050 

Fireworks  (manufacturing) 46  .050 

Floating  docks  (construction) 9  .045 

Floating  docks  (operation) 12  .050 

Flouring  mills 21  .020 

Foodstuffs  (working  In) 39  .015 

Foundries   34  .020 

Fruits  (working  in) 39  .015 

Galvanized  iron  or  tin  work 5  .050 

Garbage  works 25  .020 


§  140      WORKMEN'S  COMPENSATION  AND  INSURANCE.  366 

Class.  Pet. 

Gas  works  or  systems  (construction) 6  .050 

Gas  works  (operation) 19  .030 

Glass  beveling 1 34  .025 

Glass  manufacturing 31  .020 

Glass  setting 5  .020 

Grain  elevators  (not  metal  framed) 2  .050 

Grain  elevators   (operation) 21  .020 

Grease  making 43  .015 

Hardware 34  .020 

House  heating  systems _ 6  .020 

House  moving 4  .065 

House  wrecking 4  .065 

Ice,  artificial 44  .020 

Installations  of  steam  boilers  or  engines 6  .030 

Iron   (manufacturing)  34  .020 

Iron  or  steel  frame  structures  or  parts  of  structures 5  .080 

Jetties 3  .050 

Jewelry  (making) 41  .015 

Keg  (manufacturing) 29  .025 

Lath  mills 10  .025 

Lathing 5  .020 

Lard  (making) 43  .015 

Laundries 22  .020 

Lead  articles  (manufacturing) 34  .020 

Leather  (working  in) 38  .015 

Lithographing 41  .015 

Locomotive  making  or  repairing 28  .025 

Logging 10  .025 

Logging  railroads 7  .050 

Longshoring  42  .030 

Machinery  (installation  of  not  otherwise  specified) 6  .030 

Machine  shops  (not  otherwise  specified) 34  .020 

Mantel  setting 5  .030 

Marble  work 5  .050 

Marble  work  (setting) 5  .030 

Marine  railways 3  .050 

Masts  (with  or  without  machinery) 10  .025 

Metal  ceiling  work 5  .030 

Metal  smokestacks  or  chimneys 5  .050 

Metal  (stamping) 26  .045 

Millwrighting 2  .030 

Mines  (other  than  coal) 17  .025 

Oils  (working  in) 39  .015 

Ornamental  metal  work  in  buildings 5  .035 

Packing  cases 29  .025 

Packing  houses  _.                                                                      _  43  .025 


367  WASHINGTON  ACT.  §  140 

Class.  Pet. 

Pail  (manufacturing) 29  .025 

Painting  of  buildings  or  structures 5  .030 

Paper    (working  in)    38  .015 

Paper-hanging  5  .020 

Paper   mills   24  .020 

Peat  fuel 36  .020 

Photo-engraving   41  .015 

Pile-driving    3  .050 

Pile-treating  works 47  .025 

Placing  wires  in  conduits 6  .030 

Plastering  5  .020 

Plumbing  work    (outside) 5  .050 

Plumbing  work  (inside) 5  .020 

Porcelain  ware  35  .020 

Pottery   (manufacturing)   L.  35  .020 

Powder  works    (manufacturing) 46  .100 

Power  plants  (electric)  or  systems  (operation) 13  .040 

Power  plants  (steam)  or  systems  (operation) 13  .025 

Printing 41  .015 

Pulp  mills 24  .020 

Quarries    17  .040 

Railroad  car  making  or  repairing 28  .025 

Road  making  (without  blasting) 8  .020 

Road  making  (with  blasting) 8  .050 

Rolling  mills   18  .030 

Roof   work   5  .050 

Rubber    (working  in) 38  .015 

Safe-moving  4  .050 

Sash    29  .025 

Saw  mills  10  .025 

Sewers  —     1  -065 

Shaft-sinking   1  -060 

Shingle  mills -  10  .025 

Ship  building  (with  scaffolds) 9  .045 

Ship  rigging 9  -030 

Ship   wrighting   9  -030 

Slate  work  5  .050 

Smelters  (operation)  

Soap   (making)    -  43  .015 

Spars  (with  or  without  machinery) —  10  .025 

Staves    —  29  .025 

Steamboats   20  -030 

Steam  heat,  plants  or  systems  (operating)—                     -  13  .025 
Steam  heating  plants  (construction)—                                   6 
Steam  pipes  or  boilers  (covering)  — 

Steam  railroads  .                 7  -05< 


§  140      WORKMEN'S  COMPENSATION  AND  INSURANCE.  368 

Class.  Pet. 

Steam  shovels   (making) 27  .025 

Steel    (manufacturing)    34  .020 

Steel   frame   structures 5  .020 

Steeples  2  .050 

Stevedoring   42  .030 

Stockyards 43  .025 

Stone  (with  or  without  machinery) 31  .025 

Stone  crushing  17  .030 

Stone  setting 5  .030 

Stone  work  5  .050 

Street  grading  (or  other) 8  .035 

Street  railways 14  .030 

Sub-aqueous  works  3  .065 

Tallow    (making)    43  .015 

Tanks    (construction)    2  .040 

Tanks   (manufacturing)   27  .025 

Tanneries    43  .020 

Telegraph  systems    (construction) 6  .050 

Telegraph  systems   (operating) 15  .030 

Telephone  systems   (construction) 6  .050 

Telephone  systems  (operating) ! 15  .030 

Terra   cotta    (manufacturing) 35  .020 

Textile    (working  in) 38  .015 

Textile  (not  otherwise  specified) 38  .015 

Theater  stage  employes 45  .015 

Tile  (manufacturing)   35  .020 

Tile-setting  5  .030 

Tin  (stamping)   26  .045 

Towers  (not  metal  framed) 2  .050 

Trestles   2  .065 

Tub   (manufacturing)   29  .025 

Tugs   20  .030 

Tunnels   1  .065 

Vegetables  (working  in) 39  .015 

Veneer  29  .025 

Ventilating  systems  (house) 6  .020 

Water  towers  (construction) 2  .040 

Water  towers    (manufacturing) 27  .025 

Water  works  or  systems  (construction) 6  .050 

Water  works    (operation) 23  .020 

Wharf  (operation) 42  .020 

Wind  mills  (not  metal  framed) 2  .040 

Wood  (kindling)  29  .025 

Wood  fibre  ware 29  .025 

Wood  ware 29  .025 

Wood  working  (not  otherwise  specified) 29  .020 


369  WASHINGTON  ACT.  §  141 

Class.         Pet. 

Wooden  stair  building 5        .020 

Wool    (working  in) 38         .015 

Zinc    (manufacturing)    34        .020 

Chapter  74,  Section  17,  Laws  of  1911.  Public  and  Contract 
Work — Whenever  the  state,  county  or  any  municipal  corporation 
shall  engage  in  any  extra  hazardous  work  in  which  workmen  are 
employed  for  wages,  this  act  shall  be  applicable  thereto.  The 
employer's  payments  into  the  accident  fund  shall  be  made  from  the 
treasury  of  the  state,  county  or  municipality.  If  said  work  is  being 
done  by  contract,  the  payroll  of  the  contractor  and  the  sub-contrac- 
tor shall  be  the  basis  of  computation,  and  in  the  case  of  contract 
work  consuming  less  than  one  year  in  performance  the  required 
payment  into  the  accident  fund  shall  be  based  upon  the  total  pay- 
roll. The  contractor  and  any  sub-contractor  shall  be  subject  to  the 
provisions  of  the  act,  and  the  state  for  its  general  fund,  the  county 
or  municipal  corporation  shall  be  entitled  to  collect  from  the 
contractor  the  full  amount  payable  to  the  accident  fund,  and  the 
contractor,  in  turn  shall  be  entitled  to  collect  from  the  sub-contrac- 
tor his  proportionate  amount  of  the  payment. 

§  141.  Form  of  instructions  to  cities,  counties, 
school,  port,  water  way,  drainage,  or  other  municipal 
corporations  (i) : 

1.  All  contractors  doing  public  work  in  a  given  month  to  be  listed. 

2.  Payrolls  of  contractors  engaged  in  occupation  named  in  section 

4  of  the  Act  must  be  filed  monthly  with  the  auditor,  contrac- 
tor, or  clerk. 

3.  On  the  basis  of  such  payrolls,  officers  shall  enter  the  rate,  class 

and  contribution  on  each  department  of  his  work  opposite 
each  contractor's  name  on  the  within  blank. 

4.  Accompany  this   report  with  checks  or  warrants   payable   to 

"Industrial  Insurance  Commission." 

5.  The  Commission  or  its  district  assistant,  or  a  traveling  auditor, 

will  audit  contractors'  payrolls  so  filed  from  time  to  time 
without  notice;  or,  on  request  each  month  prior  to  the  within 
report  being  forwarded  to  Olympia. 

6.  Segregate  only  the  main  divisions  of  a  payroll  into  class,  disre- 

gard incidental  occupations — classify  such  items  with  the 
same  work  rendering  odd  jobs  necessary. 

§  142.  Form  of  letter  of  instructions  to  the  employ- 
ers and  employes  (j) : 

Gentlemen: 

Acknowledging   your    request   of   recent   date    for   supply   of 
blanks,  we  take  pleasure  in  enclosing  the  same  herewith; 
24— BOYD  w  c 


§  143      WORKMEN'S  COMPENSATION  AND  INSURANCE.      370 

Form  (k)  must  be  made  out  by  the  employer  in  every  case  of 
accident  coming  under  the  law. 

Form  (1)  must  be  made  out  by  the  employe  or  by  his  direction 
and  with  the  assistance  of  the  attending  physician. 

Form  (m)  must  be  made  out  by  the  attending  physician  in 
case  of  injury  and  Form  (q)  by  the  attending  physician  in  case 
of  death.  Form  (q)  should  be  acknowledged  before  a  notary. 

(Unless  the  injured  employe  is  attended  by  a  regularly  licensed 
physician,  claim  will  not  be  considered.) 

Form  (r)  must  be  made  out  by  the  undertaker  in  case  of  death 

and  form  (s)  by  the  dependents  or  family  of  deceased  in  case  of 

death.    Both  of  these  forms  should  be  acknowledged  before  a  notary. 

Whenever   possible,  Form    (o)    should   be   signed   by   witnesses 

who  saw  the  accident  and  forwarded  promptly  to  this  office. 

Form  (n)  should  be  made  out  by  the  attending  physician  or 
surgeon  as  soon  as  the  injured  employ^  is  discharged  from  treat- 
ment. 

Please  keep  a  supply  of  these  forms  on  hand.    Additional  sup- 
plies will  be  forwarded  promptly  on  request  or  may  be  procured  at 
the  following  branch  offices  of  the  Commission: 
Seattle,  524  Haight  Building; 
Tacoma,  506  Bank  of  California  Building; 
Bellingham,  346  First  National  Bank  Building; 
Spokane,  410  Fernwell  Building; 
Vancouver,  805  Washington  Street; 
Aberdeen,  536  Finch  Building. 

Unless  the  injury  causes  the  loss  of  over  one  day's  time  or 
results  in  a  disability  that  impairs  the  earning  capacity  5  per  cent., 
it  cannot  be  considered  by  the  Commission. 
Address  all  communications  to — 

THE  INDUSTRIAL  INSURANCE  COMMISSION! 

Olympia,  Washington. 

§  143.  Form  of  employer's  report  of  accident  to 
employe  with  chart  (k) : 

INSTRUCTIONS— Unless  accident  represents  5  per  cent,  loss  of  time 
or  5  per  cent,  disability,  disregard. 

Fill  out  and  return  blank  to  Commission  within  5  days  after  ac- 
cident. 

Fill  in  all  blanks  with  ink,  using  pen  or  typewriter. 

Employer,  Place,  and  Time. 

Employer's  name Office  address — Street  and  No 

City  or  village Business,  goods  produced,  work  done,  or 


37 1                                       WASHINGTON  ACT.  §  143 

kind  of  trade  or  transportation 

Location  of  plant  or  place  of  work  where  accident  occurred— Street 
and  No City  or  village Date  on  which  acci- 
dent occurred Hour  of  day State  whether 

accident  happened  on  the  premises  or  at  the  plant,  or  in  course  of 
employment,  or  away  from  the  plant  of  employer;  if  away  from 
plant  state  where  and  by  whom  injured 

Who  was  in  charge  of  work  at  place  where  accident  occurred?—. 


The  Injured  Person. 

Name Address Sex Age 

Speak  English? If  not,  what  language? 

Occupation  when  injured? Was  it  injured  person's  regu- 

^lar  work? Engaged  in  construction,  operation  or  repair? 

Length  of  experience  in  said  occupation 

Piece  or  time  worker? Wages  or  average  earnings  per 

day What  statement,  if  any,  has  injured  person  made? 


The  Cause. 

Name  of  machine,  tool  or  appliance  in  connection  with  which  acci- 
dent occurred? Hand  or  mechanical  feed? 

Part  on  which  accident  occurred? Was  it  in  any  way  out 

of  order  or  ill-suited  to  the  work? Were  special  instruc- 
tions given  injured  person  in  relation  to  its  use? Was 

accident  due  to  want  of  care  of  injured  person? Was 

accident  due  to  negligence  on  part  of  any  person,  if  so,  how? 

In  whose  service  was  person  who  caused  the  accident? 

Was  accident  caused  by  removal  of  any  safeguard? If  so, 

was  it  removed  by  the  injured  workman,  or  any  of  his  fellow  work- 
men, or  by  the  superintendent  or  foreman? 

Names  and  addresses  of  witnesses 


§  143      WORKMEN'S  COMPENSATION  AND  INSURANCE.      372 

Describe  In  full  how  accident  happened 

How  could  accident  have  been  prevented 


The  Injury. 

State  fully  nature  and  extent  of  injury — (Mark  on  attached  chart 
location  of  injury)* 


Medical  Attendance. 

Attending  physician,  or  hospital  where  sent? 

Name Address Probable  length  of  disa- 
bility— give  your  own  opinion 


Dependents. 

Is  Injured  workman  married  or  single? 

If  single,  has  injured  party  any  dependents  ?. 
If  so,  give  names  and  address  of  each— 


If  married,  give  names  and  present  address  of  husband  or  wife  and 
children  of  injured  workman 


Number  of  children Ages   of  children Num- 
ber of  other  dependents Ages  of  other  dependents 

Are  father  and  mother  living? If  so,  give  address  of  each 


(Signed) 

Official  title  or  position. 
For__. 


*See  pp.  379,  380  for  charts. 


373  WASHINGTON  ACT.  §  144 

§  144.    Form   of  workman's  claim  for  compensa- 
tion (1) : 

(Fill  In  all  blanks  with  Ink  or  Indelible  Pencil.) 
Employer,  Place,  and  Time. 

Employer's  name   

Office  address — Street  and  No. 

What  kind  of  business? 

Location  of  plant  where  accident  occurred — Street  and  No. 

City  or  village 

Date  on  which  accident  occurred Hour  of  day 

Did  accident  happen  on  employer's  premises  or  plant? 

In  course  of  workman's  proper  employment? 

Or  away  from  employer's  premises  or  plant? 

If  away  from  employer's  premises  or  plant,  state  where  and  by 
whom  injured? 

The  Injured  Person. 

Name  in  full 

Address — (Street  and  No.)    

Sex Age Speak  English? 

If  not,  what  language? 

Occupation  when  injured? Was  this  your  regular  work? 

Length  of  experience,  here  and  elsewhere,  in  this  occupation? 

Piece  or  time  worker? Wages,  or  average  earnings  per  day? 

Place   of  birth? 

Were  you  in  a  good  state  of  health  at  the  time  of  this  accident? 

Have  you  ever  had  a  serious  sickness? If  so,  what  was  it, 

how  long  did  it  last  and  who  was  your  attending  physician? 

Have  you  ever  received  any  other  injury? 

If  so,  when,  where,  and  what  was  its  nature? 

Have  you  any  other  source  of  income,  such  as  lodge  benefits,  acci- 
dent insurance,  etc.? If  so,  how  much 

and  from  what  source  derived? .. 

The  Cause. 

Name  of  machine,  tool  or  appliance  in  connection  with  which  acci- 
dent occurred?  

Hand  or  mechanical  feed? 

Part  on  which  accident  occurred? 

Was  accident  caused  by  any  fault  of  machines  or  appliances  you 
were   using?  

Were  all  safeguards  in  their  places  at  the  time  you  were  hurt? 


§  144      WORKMEN'S  COMPENSATION  AND  INSURANCE.      374 

If  any  safeguard  was  removed,  did  you  remove  it,  or  was  it  removed 
by  any  of  your  fellow  workmen  or  any  superintendent  or  fore- 
man?   . 

Describe  in  full  how  accident  happened 

The  Injnry. 

State  fully  nature  and  extent  of  injury 

Names  and  addresses  of  witnesses 


Medical  Attendance. 

Attending  physician  or  hospital  where  sent— 
Name   _  .  Address. 


Dependents. 

If  married,  give  full  name  and  address  of  wife  or  husband 

Are  you  living  as  husband  and  wife? 

If  not,  are  you  divorced? 

If  divorced,  when  and  where? 

If  separated,  how  long  have  you  lived  apart? 

Has  any  of  your  wages  gone  to  the  support  of  your  wife  or  husband 

during  this  time? „ 

How  much  per  week? Have  you  any  children  under  the  age 

of  sixteen? If  so,  give  name,  age  and 

address  of  each 

If  not  in  your  care,  give  name  and  address  of  people  with  whom 

they  live 

Have  you  any  of  the  following  dependents:  invalid  child  over 
the  age  of  sixteen  years,  daughter  between  sixteen  and  eighteen 
years  of  age,  father,  mother,  grandfather,  grandmother,  step-father, 
step-mother,  grandson,  granddaughter,  step-son,  step-daughter, 
brother,  sister,  half-sister,  half-brother,  niece,  nephew,  who  at  the 
time  of  the  accident,  were  dependent,  in  whole  or  in  part,  for  their 

support  upon  your  earnings? 

If  you  have  any  of  the  above  named  dependents,  give  their  names 
and  addresses,  together  with  their  ages,  and  what  support  they 

were  receiving  from  you 

I,  the  undersigned,  do  hereby  make  application  to  the  Industrial 
Insurance  Commission  of  Washington  for  compensation  for  injuries 
received  as  aforesaid.  I  hereby  state  that  the  above  facts  with  ref- 
erence to  myself  and  my  injury  are  true  and  correct. 

Signed  this day  of ,  191—,  at 

County  of ,  State  of  Washington. 

(Sign  full  name  here) 

Signed  and  witnessed  before: 


375  WASHINGTON   ACT.  §  145 

§  145.  Form  of  instructions  to  injured  workman 
(1): 

This  form  must  be  made  out  by  every  workman,  injured  in  a 
dangerous  occupation,  who  desires  compensation  from  the  state. 

Unless  the  injury  causes  the  loss  of  over  one  day's  time  or 
results  in  a  disability  that  impairs  the  earning  capacity  5  per  cent., 
it  cannot  be  considered  by  the  Commission. 

Do  not  hire  a  lawyer  until  you  have  asked  the  help  of  your 
employer,  your  attending  physician  or  some  member  of  the  Commis- 
sion's staff.  If  you  are  entitled  to  compensation  the  services  of  a 
lawyer  are  not  necessary  and  you  will  receive  your  money  without 
a  lawsuit  or  other  expense. 

It  is  the  duty  of  your  attending  physician  to  assist  you  in  mak- 
ing out  your  claim.  See  section  12,  paragraph  (a)  of  the  Work- 
men's Compensation  Act  (Chap.  74,  Laws  of  1911).  "Where  a 
workman  is  entitled  to  compensation  under  th;s  act  he  shall  file 
with  the  department  his  application  for  such,  together  with  the  certi- 
ficate of  the  physician  who  attended  him,  and  it  shall  be  the  duty  of 
the  physician  to  inform  the  injured  workman  of  his  rights  under 
this  act  and  to  lend  all  necessary  assistance  in  making  this  applica- 
tion for  compensation  and  such  proof  of  other  matters  as  required 
by  the  rules  of  the  department  without  charge  to  the  workman." 

Call  any  doctor  you  like.  The  Commission  has  nothing  to  do 
with  doctor's  bills  or  hospital  charges. 

Get  blanks  from  your  employer,  from  the  office  of  the  Commis- 
sion in  Olympia,  or  from  any  of  its  branch  offices  as  follows: 

Seattle,  524  Haight  Building; 

Tacoma,  506  Bank  of  California  Building; 

Bellingham,  346  First  National  Bank  Building; 

Spokane,  410  Fernwell  Building. 

Send  claim  to  nearest  local  office  or  directly  to  Olympia. 

If  possible,  get  a  report  of  witnesses  who  saw  the  accident — 
Form  (o).  This  blank  can  be  secured  at  above  offices  and  may 
save  trouble  later. 

In  case  of  death,  relatives  or  dependents  must  make  the  claim 
and  blanks  Vill  be  furnished  them  when  requested. 

Fill  out  the  blanks  fully  and  carefully.  Action  upon  your  claim 
will  be  delayed  unless  reports  are  made  out  promptly  and  correctly. 

Make  out  your  claim  AT  ONCE.  Prompt  action  will  assist  you 
in  getting  early  compensation. 

If  required,  you  must  allow  the  Commission's  physician  to 
examine  you,  but  this  examination  will  not  cost  you  any  money. 
It  is  paid  for  by  the  state.  Don't  refuse  to  be  examined  or  your 
claim  will  not  be  considered. 


§  145      WORKMEN'S  COMPENSATION  AND  INSURANCE.      376 
GENERAL  INSTRUCTIONS. 

Form  (k)  must  be  made  out  by  the  employer  in  every  case 
of  accident  coming  under  the  law. 

Form  (1)  must  be  made  out  by  the  employe  or  by  his  direc- 
tion and  with  the  assistance  of  the  attending  physician. 

Form  (m)  must  be  made  out  by  the  attending  physician  in 
case  of  injury  and  Form  (q)  by  the  attending  physician  in  case 
of  death. 

Form  (r)  must  be  made  out  by  the  undertaker  in  case  of  death 
and  Form  (s)  by  the  dependents  or  family  of  deceased  in  case  of 
death. 

Whenever  possible,  Form  (o)  should  be  signed  by  witnesses 
who  saw  the  accident  and  forwarded  to  this  office. 

Form  (n)  must  be  made  out  by  the  attending  physician  or 
surgeon  as  soon  as  the  injured  employe  is  discharged  from  treat- 
ment. 

Keep  blanks  on  hand  or  ask  your  employer  to  keep  them  on 
hand  for  you.  They  don't  cost  him  anything,  and  the  sooner  you 
make  a  proper  claim,  the  sooner  it  will  be  settled. 

For  copies  of  "Rules  and  Regulations"  and  placards  for  posting, 
please  apply  to  the  Commission  or  to  its  branch  offices  in  Seattle, 
Tacoma,  Spokane,  Bellingham,  Aberdeen  or  Vancouver. 

CAUTION!     WARNING!! 

Don't  take  off  any  safeguard  or  protective  device.  If  you  do, 
and  then  get  hurt,  it  decreases  or  lessens  your  compensation  10  per 
cent.  (See  section  9  of  the  law.) 

Don't  remove  any  safeguard  yourself  and  don't  let  anyone  else 
remove  it.  If  the  superintendent,  foreman  or  any  other  person 
removes  it,  report  the  fact  to  the  Commission. 

Don't  take  any  chances  with  machinery.  If  you  injure  yourself 
intentionally  you  are  not  entitled  to  any  compensation. 

Don't  hesitate  to  lend  a  hand  when  anyone  is  hurt.  It  is  to 
your  interest  and  to  your  employer's  interest  to  decrease  or  lessen 
the  number  of  accidents  and  deaths  and  keep  as  many  workmen  at 
work  as  possible. 

The  state  will  give  you  reasonable  compensation  in  case  of 
injury.  If  you  do  not  think  it  is  sufficient,  remember  that  it  is 
much  better  than  lawsuits  and  delays  under  the  old  system. 

§  146.  Form  of  report  of  attending  physician  with 
charts  (m) : 

(Fill  in  all  blanks  with  ink,  using  pen  or  typewriter.) 
Employer,  Place,  and  Time. 

Employer's  name Office  address — Street  and  No 

City  or  village What  kind  of  business? Loca- 


377  WASHINGTON  ACT.  §  146 

tion  of  plant  where  accident  occurred — Street  and  No 

City  or  village Date Hour M 

The  Injured  Person. 

Name   in   full City  or   town Address— Street 

and    No Occupation Age Sex 

Married  or  single 

Does  patient  pay  hospital  dues? is  patient  left  or  right- 
handed? Has  the  patient  been  maimed  or  crippled  by  any 

previous  injury? If  So,  what?__ 


The  Injury. 

Give  description,  stating  the  parts  injured  and  supposed  manner  of 
infliction,  marking  upon  the  chart  upon  the  back  of  this  report,  the 
site  of  injury 


Where  treated Hour  of  treatment State  who 

rendered  first  treatment  and  what  was  done- 


State  name  and  address  of  consultant  or  assistant- 


Give  description  of  treatment. 


What  was  done  with  patient? Are  the  symptoms  from 

which  he  is  suffering  due  to  the  aforesaid  accident,  or  are  they  trace- 
able to  any  previous  accident,  or  other  cause,  and  if  so,  what? 


Medical  Attendance. 

Name  of  attending  physician Office  address — Street  and 

No City  or  town 


§  146      WORKMEN'S  COMPENSATION  AND  INSURANCE.      378 

Disability. 

Is  the  injury  of  so  serious  a  nature  as  to  wholly  disable  and  prevent 
him  from  attending  to  any  and  all  kinds  of  duties  pertaining  to  his 

present  occupation,  or  any  other  occupation? 

If  not  wholly  disabled,  to  what  extent  disabled? 


Is  he  confined  to  the  house? If  not  confined  to  the  house, 

why  do  you  consider  that  he  is  unable  to  attend  to  any  part  of  his 
duties?    . 


State  opinion  as  to  length  of  time  patient  will  be  disabled. 
In  your  opinion  will  any  permanent  disability  follow? 


State  any  additional  information  which  you  deem  of  interest  as  to 
extent  of  disability,  impairment  of  earning  capacity,  etc. 


(This  report  must  contain  account  of  all  injuries  no  matter  how 
trivial.) 

I  hereby  certify  that  I  am  the  attending  physician  of  the  injured 
person  above  mentioned;  that  I  have  set  forth  in  the  foregoing 
report  all  the  facts  in  the  case  and  that  the  statements  contained 
therein  are  true  and  correct. 

(Signed) 

Attending  Physician. 
Date  signed 

(This  form  should  be  made  out  and  forwarded  to  the  office  of 
the  Commission  in  Olympia  as  soon  as  surgeon  has  made  such 
careful  examination  as  will  enable  him  to  make  an  intelligent 
report  of  the  case.  No  fee  is  paid  for  making  out  this  blank,  but  the 
Commission  respectfully  urges  the  co-operation  of  attending  physi- 
cians in  getting  the  real  facts  of  each  case  before  it. 

N.  B. — Your  patient  cannot  receive  any  Compensation  from  the 
State  until  this  form  is  received  and  passed  upon  by  the  Chief 
Medical  Advisor  of  the  Commission.) 


379 


WASHINGTON   ACT. 


§  146      WORKMEN'S  COMPENSATION  AND  INSURANCE.      380 


WASHINGTON  ACT.  §  147 

§  147.     Form  of  surgical  discharge  report  (n)  : 

,  Wash. 

,     191 

I  hereby  notify  you  that who  came  under  my  care  at 

on  the day  of ,  191 ,  having 

been  injured  at  the  plant  or  premises  of at 

on  the day  of ,  191 ,  was  disccharged  from 

treatment,  the day  of 191. 

1.  Developments  which  have  retarded  recovery 

2.  What  operation,  if  any,  performed  since  original  report? 


3.  His  condition  is 

4.  State  whether  in  your  opinion  any  permanent  disability  will 
follow If  so,  what? 

5.  The  time  of  treatment  was days.     6.    Was  in  hos- 
pital  days. 

7.  Will  be  able  to  resume  work  on  or  about  the -day  of 

,  191 

8.  If  patient  has  already  resumed  work,  for  how  many  days  was 
he  unable  to  work? 

9.  Inclination  of  patient  to  follow  surgeon's  directions 

10.     *For  statistical  purposes  only,  please  give  the  following  data: 

Cost  of  medical  and  surgical  treatment $ 

Cost  of  medicine,  medical  and  surgical  supplies—  $ 

Cost  of  crutches  and  apparatus $ 

Hospital  charges  $ 

Ambulance   charges   $ 

Cost  of  nurse $ 

*Note:     The  above  information  will  be  held  strictly  confidential, 

and  only  used  in  the  form  of  general  tables,  no  individual  figures 

being  shown. 

,  Surgeon 

at   

t^This  report  must  be  made  out  and  forwarded  to  Olympia  as  soon 
as  patient  is  discharged  from  professional  care. 

§  148.     Form  of  report  of  witnesses  (o) : 

(Fill  in  all  blanks  with  Ink  or  indelible  pencil.) 
Employer,  Place,  and  Time. 

Employer's  name Location  of  plant  where  accident  oc- 
curred—Street and  No City  or  village Date 

on  which  accident  occurred Hour  of  day 


§  148      WORKMEN'S  COMPENSATION  AND  INSURANCE.      382 

The  Injured  Person. 
I 

Name  In  full Address — Street  and  No . Occu- 
pation when  injured? 

The  Cause. 

Name  of  machine,  tool  or  appliance  in  connection  with  which  acci- 
dent occurred?  

Was  the  machine  or  appliance  in  good  repair? 

Had  the  injured  person  been  properly  instructed  in  its  use? 

Were  all  safeguards  in  place  when  accident  happened? 

Was  accident  due  to  absence  of  safeguard? * 

If  so,  who  removed  safeguard? 

Was  the  place  where  accident  occurred  well  lighted? 

Natural  or  artificial   light? 

Whose  fault  was  cause  of  accident? 

Where  was  the  superintendent  or  foreman  at  the  time  of  accident? 

,  What  statement  did  injured  person  make  at  the  time  of  accident? 


Was  injured  person  in  any  way  careless  or  negligent  in  his  work? 

Was  his  eyesight  or  hearing  defective? 

Describe  in  full  how  accident  happened 


How  could  accident  have  been  prevented?. 

The  Injury. 

State  fully  nature  and  extent  of  injury 


Dependents. 

If  married,  give  full  name  and  address  of  wife  or  husband. 


Has  he  any  children  under  the  age  of  sixteen? 

If  so,  how  many? 

If  single,  what  persons  are  dependent  upon  the  injured  person's 
earnings?   

I  hereby  certify  that  I  witnessed  the  accident  described  here- 


383  WASHINGTON  ACT.  §  148 

with  and  declare  that  the  above  is  a  true  and  correct  account  of  the 
same  as  I  saw  it. 

(Sign  Here)  1 Witness. 

2 Witness. 

3 Witness. 

Note:  Do  not  try  to  answer  questions  by  hearsay.  Answer 
only  according  to  your  personal,  first-hand  knowledge. 

FORM  OP  INSTRUCTIONS  TO  WITNESSES. 

This  form  should  be  made  out  in  every  case  where  there  are 
witnesses  to  an  accident,  for  which  compensation  is  desired.  It  is 
to  the  interest  of  both  employer  and  employe1  to  have  a  report  made 
by  witnesses  in  every  case. 

The  making  out  of  this  form  is  not  compulsory,  and  employers 
cannot  compel  their  employe's  to  sign  it,  but  the  Commission  re- 
quests that  both  employers  and  employe's  co-operate  for  the  purpose 
of  getting  at  the  exact  facts. 

The  statements  appearing  on  this  form  do  not  have  to  be 
acknowledged  or  sworn  to.  They  can  be  made  out  by  anyone  and 
signed  by  the  witness  at  any  time  or  place. 

The  advantage  of  this  form  to  the  workman  or  his  family 
making  claim  is  that  the  report  of  witnesses  makes  the  claim  file 
complete  and  is  likely  to  hasten  its  settlement. 

The  advantage  to  the  employer  is  that  the  report  of  witnesses 
constitutes  a  cross-check  on  the  claim  and  operates  to  prevent  fraud 
or  collusion. 

GENERAL  INSTRUCTIONS. 

Form  (k)  must  be  made  out  by  the  employer  in  every  case  of 
accident  coming  under  the  law. 

Form  (1)  must  be  made  out  by  the  employe  or  by  his  direc- 
tion and  with  the  assistance  of  the  attending  physician. 

Form  (m)  must  be  made  out  by  the  attending  physician  in 
case  of  injury  and  Form  (q)  by  the  attending  physician  in  case 
of  death. 

(Unless  the  injured  employe  is  attended  by  a  regularly  licensed 
physician,  claim  will  not  be  considered.) 

Form  (r)  must  be  made  out  by  the  undertaker  in  case  of 
death  and  Form  (s)  by  the  dependents  or  family  of  deceased  in 
case  of  death. 

Whenever  possible,  Form  (o)  should  be  signed  by  witnesses 
who  saw  the  accident  and  forwarded  promptly. 

Form  (n)  must  be  made  out  by  the  attending  physician  or 
surgeon  as  soon  as  the  injured  employe  is  discharged  from  treat- 
ment. 

Keep  blanks  on  hand  or  ask  your  employer  to  keep  them  on 
hand  for  you.  They  don't  cost  him  anything,  and  the  sooner  you 
make  a  proper  claim,  the  sooner  it  will  be  settled. 


§  149      WORKMEN'S  COMPENSATION  AND  INSURANCE.      384 

For  copies  of  "Rules  and  Regulations"  and  placards  for  posting, 
please  apply  to  the  Commission  or  to  any  of  its  branch  offices  as  fol- 
lows: 

Seattle,  524  Haight  Building; 

Tacoma,  506  Bank  of  California  Building; 

Bellingham,  346  First  National  Bank  Building; 

Spokane,  410  Fern  well  Building; 

Vancouver,  805  Washington  Street; 

Aberdeen,  536  Finch  Building. 

Unless  the  injury  causes  the  loss  of  over  one  day's  time  or 
results  in  a  disability  that  impairs  the  earning  capacity  5  per  cent, 
it  cannot  be  considered  by  the  Commission. 

§  149.  Form  of  surgeon's  special  report  with 
charts  (p): 

(Fill  in  all  blanks  with  ink,  using  pen  or  typewriter.) 

Name  of  patient Address Nativity 

Age Married,  Single,  Widowed.     Where  is  the  patient? 

Date    of    accident Hour M.      Place    of 

accident    . , 

1.  Give  description  of  injury,       

stating   supposed    manner      

of  infliction,  etc.  

2.  Give    description    of    the       

treatment  being  employed      

in  this  case  in  full. 


3.  What  operations  have 
been  performed  and  with 
what  results? 


4.  Name  and  address  of  sur- 
geon who  operated,  and 
assistant. 


5.  Has  repair  been  delayed 
from  any  cause?  If  so, 
what? 


6.  Was  there  any  previous 
disability  or  deformity? 
If  so,  what? 


7.  Is  there  evidence  of  luet- 
ic,  gonorrheal,  or  tuber- 
cular infection  or  alcohol- 
ism? If  so,  what? 


385  WASHINGTON   ACT. 


Temperament  of  patient, 
any  evidence  of  hysteria, 
neurasthenia  or  hypo- 
chondria. If  so,  what? 


9.  Any  occupational  disease? 


10.  Temporary  disability. 


11.  What  is  the  PERMANENT 
disability  of  this  case,  if 
any? 

Mark  on  chart  EXACT  lo- 
cation of  same.* 


12.  Inclination  of  patient  to 
follow  surgeon's  direc- 
tions, etc. 

Give   a   summary  of   the 
case  as  you  see  it. 


13.  Peculiar    conditions    and      

your  findings.  

Signature  of  Surgeon ,  M.  D. 

Date Address * Washington. 

§  150.     Form  of  proof  of  death  by  physician  (q)  : 

(To  be  Filled  Out  by  the  Attending  Physician  or  Deceased.) 
(Fill  in  all  blanks  with  ink,  using  pen  or  typewriter.) 

1.  Name  of  the  deceased  in  full 

2.  (a)  How  long  have  you  known  the  deceased? 

(b)  How  long  have  you  been  medical  adviser  of  deceased? 

3.  (a)  Age  at  death years,     (b)  Married  or  single 

(c)  Names  and  ages  of  children  under  16 


4.  Place  of  death  (Give  street  number,  city  or  town,  and  state) : 
Street City  or  town State 

5.  (a)  Occupation  at  the  time  of  death 

(b)  Nationality   

6.  Date  of  your  first  visit  or  prescription 

7.  Date  of  your  last  visit 

8.  Date  of   death 

9.  (a)  State  the  remote  cause  of  death 

(b)  State  explicitly  the  immediate  cause  of  death 

10.  Did  you  see  the  body  of  the  deceased  and  did  you  identify  it  as 

that  of  the  injured  workman  at 

while  in  the  employ  of ,  of 

*See  pp.  379,  380  for  charts. 

25— BOYD  W  C 


§150      WORKMEN'S  COMPENSATION  AND  INSURANCE.      386 

11.  Was  there  a  coroner's  inquest  held? 

12.  Was  deceased  attended  by  any  other  physician  during  last  ill- 
ness?   If  so,  state  his  name  and  address 

13.  Was  health  of  deceased  impaired  by  intemperance  or  any  per- 
nicious habit? If  so,  what? 

14.  Have  you  any  interest  in  this  claim? 

15.  Have  you  stated  all  the  material  facts  connected  in  any  way 
with   this   death? 

16.  So  far  as  you  know  is  there  any  reason  to  suspect  that  this 
case  is  not  a  perfectly  fair  one,  and  above  all  suspicion  of  con- 
cealment of  necessary  facts  and  information? 

Dated  this day  of ,  191 

Attending  Physician. 

STATE  OF -, 

I    ss:  OATH. 

County  of j 

On  this day  of ,  A,  D.  191 — ,  personally 

appeared  before  me,  the  above  named 

physician  in  regular  standing,  and  made  oath  that  the  answers  by 
him  above  made  and  subscribed  are  true. 

Notary  Public  or  Justice  of  the  Peace. 

(Unless  officer  taking   acknowledgment  has   OFFICIAL   SEAL, 
certificate  of  appointment  will  be  required.) 

§  151.     Form  of  proof  of  death  from  undertaker  (r)  : 

(Fill  in  all  blanks  with  ink,  using  pen  or  typewriter.) 

STATE  OF ,  County  of ,  ss: 

,  of  , 

says,  that  he  is  a  duly  licensed  undertaker  of at 

(City  or  town) 

Street  Number ;  that  as  such  he  was  required  on 

the day  of ,  191 ,  to  prepare  the 

dead  body  of for  burial;  that  he 

placed  said  body  in  a  coffin  and  placed  said  coffin,  containing  the 

said  body,  in  a in cemetery. 

That  he  was  directed  to  conduct  such  burial  by 

who  authorized  the  following  items  of  expense: 

Moving  remains  to  morgue. 

Washing,  shaving  and  dressing. 

Embalming. 

Telephone. 

Underclothes  and  hose. 


WASHINGTON  ACT.  §  151 

Slippers. 

Burial  Robe. 

Funeral  Notices. 

Cemetery  lot. 

Opening  and  filling  grave. 

Lining  grave. 

Outside  box. 

Grave  vault. 

Taking  box  or  vault  to  cemetery. 

Casket  coffin. 

Hearse. 

Personal  service. 

Use  of  gloves. 

Use  of  double  rigs. 

Use  of  single  rigs. 

Funeral  service  by. 

Remains  to  boat. 

Wagon  deliveries. 

Total $ 

That  I  was  informed  said  bill  would  be  paid  by 

That  no  part  of  said  bill  of  expense  so  authorized  for  said  burial 
has  been  paid,  except — 

$ by 

$ by 

$ by 

Subscribed  and  sworn  to  before  me,  this day  of 

,  A.  D.  191 


Notary  Public. 

(Note:  Unless  officer  taking  acknowledgement  has  OFFICIAL 
SEAL,  certificate  of  appointment  will  be  required.) 

Certificate  of  person  who  made  funeral  arrangements  will  be 
required  below  unless  itemized  bill  of  undertaker  endorsed  "correct" 
by  such  person,  is  attached. 

CERTIFICATE  OF  PERSON  AUTHORIZING  BURIAL. 

hereby  certify  that  I  have  read  the  foregoing  affidavit  of 

undertaker ;   that  I  authorized  the 

items  of  expense  therein  amounting  to  $ ,  as  the 

of  deceased  workman. 

Signed 

(Note:  The  entire  amount  allowed  for  burial  under  the  Work- 
men's Compensation  Act  can  not  exceed  $75.00.) 

MEMORANDUM  BY  CORONER,  UNDERTAKER  OR  FRIENDS. 

(To  be  furnished  in  case  no  relatives  or  dependents  are  present 
at  burial.) 


§152      WORKMEN'S  COMPENSATION  AND  INSURANCE.      388 
Address  of  Relatives  or  Dependents  of  Deceased: 

Name.  Relationship.  Address. 


1. 
2.. 
3. 
4. 


§  152.     Form  of  dependent's  claim  for  compensa- 
tion, (s) 

What  is  your  full  name? 

State  your  residence.     Street Town 

County State 

How  old  are  you?     (Give  age  at  last  birthday) years. 

Date  of  birth In  what  capacity,  or 

by  what  right,  do  you  make  the  claim? 

How  long  have  you  known  the  deceased? 

State  the  full  name  of  the  deceased 

Give  the  following  particulars  relating  to  the  deceased: 

Where  and  when  born?    Place 

County Year Month Day 

(Note:  It  is  important  that  the  town,  city,  etc.,  should  be  mentioned.) 

If  married,  when  and  where? 

Where  did  deceased  reside  at  time  of  death.     Street  and  place 


Where  and  when  did  deceased  die?    Street  and  place 

Date 

In  what  occupation  was  the  deceased  working  when  the  injuries 

occurred  that  caused  death? 

How  long  prior  to  death  was  deceased  confined  to  the  house? 


What  was  the  cause  of  death? 

Had  the  deceased  any  source  of  income  beside  his  wages,  if  so, 
what? 

Did  the  deceased  carry  accident,  life  or  lodge  insurance  or  bene- 
fits;   if  so,   what  amount   and   in   what  companies   or   lodges? 

What  ailment,  disease,  illness,  weakness,  infirmity,  disability,  or 
injury  has  deceased  ever  had?  State  facts  fully 

State  the  name  and  residence  of  every  physician  who  has  prescribed 
for  or  attended  the  deceased  during  the  past  two  years 


WASHINGTON  ACT.  §  153 

§  153.     Affidavit  to  foregoing  form. 

STATE  OF  WASHINGTON,  County  of ,  ss: 

(Strike  out  paragraphs  following  which  are  contrary  to  fact:) 
Being  first  duly  sworn,  I  the  undersigned,  depose  and  say: 

That  I  am  a  legal  guardian  of* 

(1)  ~~  children 

That  I  am  a* of 

Deceased  Workman,  whose  death  resulted  from  injury  occurring  on 

the day  of ,  19 — ,  in  course  of  hazardous 

employment  at ,  Washington,  as  heretofore  reported 

to  the  Industrial  Insurance  Commission: 

(2)  That  I  am  and  have  remained  unmarried  since  said  death; 

(3)  That  said  Deceased  Workman  left  surviving  him  the  fol- 
lowing children  not  more  than  sixteen  (16)  years  of  age,  and  whose 
birth  dates  are  as  follows  to-wit: 

Relationship 
Name.  Date  of  Birth.      to  Deceased  Workman. 


(4)  That  said  Deceased  Workman  left  surviving  him  no  widow 

— widower — but child — children — under  sixteen  years  of 

age  named  in  paragraph  (3)  hereof,  who  are  in  the  lawful  custody 
of as thereof; 

(5)  That  said  Deceased  Workman  left  surviving  him  no  widow 

— widower  or  child  under  the  age  of  16  years,  but  left 

dependent ,  necessarily  receiving  support  in  whole  or  in  part  from 

his   earnings,   and  who   actually   received  during  the  twelve    (12) 
months   next   preceding   the   injury   the   average   monthly   support 
stated  opposite  their  name__,  viz.: 


Actual  Necessity 
Name.               Birth  Date.             for  Dependency. 

Average 
Monthly 
Support. 
$  

(6)  That  the  actual  and  necessary  support  given  the  dependents 
named  in  paragraph  (5)  "during  the  twelve  months  next  pre- 
ceding the  occurrence  of  the  injury"  was  monthly  as  follows: 


(1)  $ in 

(4)  $ in 

(7)  $ in 

(10)  $ In 


(2)  $ in ;  (3)  $ In. 


(5)  $ in ;  (6)  $ in ; 

(8)  $ —in ;  (9)  $ in ; 

(11)  $ in ;  (12)  $ In 

(7)     That  said  Deceased  Workman  was  under  the  age  of  twenty- 


*Insert  the  correct  term;  as  widow,  widower,  legal  dependent, 
guardian  of  children,  etc. 


§154     WORKMEN'S  COMPENSATION  AND  INSURANCE.      390 

one  (21)   years,  birth  date  having  been , 

and  left  surviving  him parents,  as  follows: 

Father Post  Office  Address 

Mother Post  Office  Address 

(8)     That  paragraphs  numbered were  intentionally 

stricken  from  the  foregoing  Affidavit  Form,  and  that  the  facts  stated 
in  the  remaining  portions  thereof  are  true. 

Dated  this day  of ,  A.  D.  191— 

(Sign  here) 

Claimant. 
STATE  OF ,  County  of ,  ss: 

OATH. 

On  this day  of ,  A.  D.  191 ,  personally 

appeared  before  me,  the  above  named 

and  made  oath  that  the  anwers  by  him,  her,  or  them  above  made 
and  subscribed  are  true,  and  that  he,  she,  or  they  has  or  have  con- 
cealed no  fact  from  the  Industrial  Insurance  Commission. 

Notary  Public  or  Justice  of  the  Peace. 
(Unless   officer   taking   acknowledgment  has    OFFICIAL  SEAL, 

certificate  of  appointment  will  be  required.) 

\ 

§  154.     Form  of  affidavit  of  claimant  for  compensa-, 
tion — Survivors  of  deceased  workmen,  (t) 

(Strike  out  portions  contrary  to  fact.) 

STATE  OF  WASHINGTON, ,  County,  ss: 

Claim  No. Class Year Month  ending 

Being  first  duly  sworn,  I  the  undersigned,  depose  and  say: 

(1)  That  I  am  a* of 

Deceased  Workman,  whose  death  resulted  from  injury  occurring  on 

the day  of ,  19 ,  in  course  of  hazardous 

employment  at ,  Washington,  as  heretofore  reported 

to  the  Industrial  Insurance  Commission; 

(2)  That  I  am  and  have  remained  unmarried  since  said  death; 

(3)  That  said  Deceased  Workman  left  surviving  him  the  fol- 
lowing children  not  more  that  sixteen  (16)  years  of  age,  and  whose 
birth  dates  are  as  follows,  to-wit: 

Relationship 
Name.  Date  of  Birth,      to  Deceased  Workman. 


(4)     That  said  Deceased  Workman  left  surviving  him  no  widow 
— widower — but child — children — under  sixteen  years  of 


*Insert  the  correct  term;   as  widow,  widower,  legal  dependent, 
guardian  of  children,  etc. 


39 1  WASHINGTON  ACT.  §  1 55 

age  named  in  paragraph  (3)  hereof,  who  are  in  the  lawful  custody 

of as thereof; 

(5)     That  said  Deceased  Workman  left  surviving  him  no  widow 
—widower  or  child  under  the  age  of  16  years,  but  left 

dependent—.,  necessarily  receiving  support  in  whole  or  in  part  from 
his  earnings,  and  who  actually  received  during  the  twelve  (12) 
months  next  preceding  the  injury  the  average  monthly  support 

stated  opposite  their  name ,  viz.: 

Average 

Actual  Necessity         Monthly 
Name.  Birth  Date.  for  Dependency.         Support. 


(6)  That  said  Deceased  Workman  was  under  the  age  of  twenty- 
one  (21)  years,  birth  date  having  been 

and  left  surviving  him parents,  as  follows: 

Father Post  Office  Address 

Mother Post  Office  Address 

(7)  That  paragraphs  numbered were  intentionally 

stricken  from  the  foregoing  Affidavit  Form,  and  that  the  facts  stated 
in  the  remaining  portions  thereof  are  true. 

(Sign  here) 

(Write  name  clearly.) 

Subscribed  and  sworn  to  before  me  this day  of ,  19— 

(SEAL) 


(Title  of  Office.) 

§  155.     Form  of  summary  and  award,  (u) 

Employer,  Place,  and  Time. 

Firm    name Firm    No 

Location  of  plant Payroll  filed 

Demand    sent Paid 

The  Injured  Person. 

Employe Age,  if  not  21 |    Form  36  Sent 

Address  last  given I  Date 

|  Date 

|  Date 

I  Date 

|  Date 

I  Date 

The  Injury. 
Date  of  accident—  —Character 


Time  loss,  actual: days,  at  $ ;   Total,  $. 

Maximum  monthly  allowance,  $ 

Reduced  by  60  per  cent,  rule  to  $ 


§  155      WORKMEN'S  COMPENSATION  AND  INSURANCE.      392 


Name 


o  d 

*J  O 

fl  'w 

S  o 

O  o> 

a  P. 


o  a? 

g  fe 

5  w 

O  o> 

a  « 


2. | 

3.  I I 

4.  | | 

5.  1 1 

6.  | | 

Award. 

I.  Partial  Payment : 

Monthly  allowance  ending* 

continuing  total  disability $ 

Advance  on  account,  lump  sum,  pending  investigation $ 

II.  Lump  Sum  Settlement: 

Time  loss,  temporary  total  disability $ 

Permanent  partial  disability $ $ 

III.  Monthly  Pensions:* 

Permanent  total  disability,  beginning $ 

To  dependents  of  deceased  workman,  beginning $ 

IV.  Burial  Expenses  allowed  to $ 

V.  Reserve  "for  the  case" $ 

Computed Payment  ordered,  date 

Certified  correct 

Claim  Agent.  Chairman. 

Approved  

Chief  Physician.  Commissioner. 

*Reviewed  and  further  payment  ordered  for: 

Commissioner. 

Balance  to. 
Month  to__ 
Amounts  __ 

Initials    

Date 

Balance  to. 
Month  to__ 
Amounts  _. 
Initials  — 
Date  _ 


393  WASHINGTON  ACT.  §  1 56 

Voucher  No.__  ._  Warrant  No.  _ 


Remarks : 


§  156.  Form  of  partial  payment  voucher — Perma- 
nent partial  disability — Full  payment— Total  temporary 
disabilitv — Partial  navment  fv\ 


disability — Partial  payment,  (v) 


Month 

Year 

Claim  No 

Class To ,  Dr. 

Firm  No (Postoffice  address) 

Compensation  under   Chapter  74,   Session  Laws 

1911,   in   PARTIAL   PAYMENT   of  claim   of  above  $ 

claimant  for 

occurring  on  the : day  of ,  191__, 

at_    ,  Washington,  as  allowed  and  approved 

by  the  findings  and  order  of  the  Industrial  Insur- 
ance Commission  on  record,  file  (page )  in  the 

Commission's  office,  this  PARTIAL  PAYMENT  being 
computed  under  rules  established  in  Section  5,  Sub- 
division (d)  of  said  Statute.  $ 

Also  full  payment  for  the  permanent  partial  disa- 
bility sustained — Sub-division  (f)  $ 

STATE  OF  WASHINGTON,  County  of ,  ss: 

Received  at  Olympia,  Washington, ,  191 — ,  of  the 

STATE  AUDITOR,  warrant  on  the  State  Treasurer,  No , 

for  the  sum  of* Dollars, 

(Do  not  fill  in  this  amount) 

*$ ,  and  I,  the  undersigned,  do  hereby 

(Leave  this  space  blank) 

certify  that  the  injury  above  mentioned  actually  happened  to  me,  as 
heretofore  reported  to  the  Industrial  Insurance  Commission;  that  I 
hereby  acknowledge  receipt  of  the  amount  above  mentioned  as 
PARTIAL  COMPENSATION  for  said  injury. 

(Sign  Here) 

(Write  Name  Clearly)     Payee. 

Witnesses  to  Signature:  Date  of  Signature 

Postofflce  address 

Postofflce  address —    


*Leave  amount  blank,  to  be  filled  by  Auditor. 


§157     WORKMEN'S  COMPENSATION  AND  INSURANCE.      394 

STATE  OF  WASHINGTON,  County  of ss: 

We,  the  Industrial  Insurance  Commis.sion  of  the  State  of  Wash- 
ington, hereby  certify  that  the  claim  for  compensation  above  men- 
tioned has  been  investigated,  approved  and  the  above  partial  pay- 
ment regularly  allowed  by  the  Commission  in  the  sum  of 

Dollars, 

said  sum  to  be  paid  out  of  the  "Accident  Fund"  as  by  Chapter  74, 
Session  Laws  1911,  required  and  provided. 


Chairman. 

Attest:  Commissioner. 

Secretary.  Commissioner. 

§  157.     Form   of   partial    payment   voucher — Total 
temporary  disability — Monthly  allowance,  (vv) 

STATE  OF  WASHINGTON. 

Month  ending 

Year To Dr. 

Claim  No 

Class (Postofflce  address) 

Compensation   under    Chapter    74,    Session    Laws 
1911,    in    PARTIAL    PAYMENT    of   claim    of    above     

claimant  for 

occurring  on  the day  of ,  191 — , 

at ,  Washington,  as  allowed  and  approved 

by  the  findings  and  order  of  the  Industrial  Insurance 

Commission  on  record,  file  (page )  in  the  Commission's  office, 

this    PARTIAL    PAYMENT    being    computed    under 
rules   established   in   Section   5,   Subdivision    (d)    of 

said   Statute   

STATE  OF  WASHINGTON,  County  of ,  ss: 

Received  at  Olympia,  Washington, ,  191 ,  of  the 

STATE  AUDITOR,  warrant  on  the  State  Treasurer,  No. , 

for  the  sum  of* Dollars, 

(Do  not  fill  in  this  amount) 

*$ ,  and  I,  the  undersigned,  do  hereby  certi- 

(Leave  this  space  blank) 

fy  that  the  injury  above  mentioned  actually  happened  to  me,  as 
heretofore  reported  to  the  Industrial  Insurance  Commission;  that 
I  hereby  acknowledge  receipt  of  the  amount  above  mentioned  as 
PARTIAL  COMPENSATION  for  said  injury. 

(Sign  Here) 

(Write  Name  Clearly)     Payee. 


"Leave  amount  blank,  to  be  filled  by  Auditor. 


395                                       WASHINGTON  ACT.  §  158 

Witnesses  to  Signature  Date  of  Signature 


Postoffice  address. 
Postofflce  address. 


STATE  OF  WASHINGTON,  County  of ,  ss  : 

We,  the  Industrial  Commission,  of  the  State  of  Washington,  here- 
by certify  that  the  claim  for  compensation  above  mentioned  has 
been  investigated,  approved  and  the  above  partial  payment  regularly 

allowed  by  the  Commission  in  the  sum  of Dollars, 

said  sum  to  be  paid  out  of  the  "Accident  Fund"  as  by  Chapter  74, 
Session  Laws  1911,  required  and  provided. 


Chairman. 

Attest:  Commissioner. 

Secretary.  Commissioner. 


§  158.     Form  of  pension  voucher — Permanent  total 
disability,  (w) 

Year 

Month  ending 

STATE  OF  WASHINGTON,  Claim  No 

To Dr.  Class 

Distribution 

Post  Office  Address: 

COMPENSATION  under  Chapter  74,  Session  Laws  1911,  on  ac- 
count of  permanent  total  disability  resulting  from  injury  occurring 

on  the day  of ,  19__,  at 

Washington,  as  allowed  and  approved  by  Order  of  the  Industrial  In- 
surance Commission  on  record,  file  (page )  in  the  Commis- 
sion's office,  as  computed  on  the  following  relationship: 

Name                      Age                  Relationship  Amount 

$ 

$ 

$ 

$ 


Total $- 


RECEIVED  at  Olympia,  Washington,  this day  of 

19__,  of  the  State  Auditor,  Warrant  on  the  State  Treasurer  No 

for  the  sum  of* Dollars  (*$ )  in  full  compen- 
sation and  pension  on  account  of  said  injury  for  the  month  ending 
,  19__,  and  I  hereby  fully  release  and  discharge  the 


*Leave  amount  blank — to  be  filled  in  by  Auditor. 


§159      WORKMEN'S  COMPENSATION  AND  INSURANCE.      396 

State  of  Washington  from  any  and  all  further  liability  or  obligation 
and  other  or  further  claims  for  compensation  or  pension  for  said 

month  ending ,  on  account  of  said  injury. 

(Sign  Here) 

(Write  Name  Clearly)     Payee. 
Witnesses: 

Post  Office  Address 

Post  Office  Address 

§  159.     Form  of  pension  voucher — Survivors  of  de- 
ceased workman,  (ww) 

Year 

Month  ending 

STATE  OF  WASHINGTON,  Claim  No 

To Dr.  Class 

Post  Office  Address: 

Compensation  under  Chapter  74,  Session  Laws  1911,  on  account 

of  the  death  of „ , 

resulting  from  injury  occurring  on  the day  of , 

19 ,  at ,  Washington,  as  allowed  and  approved  by  the 

Order  of  the  Industrial  Insurance  Commission,  on  record,  file  (page 

)   in  the  Commission's  office,  as  computed  on  the  following 

relationship: 

Name  Age  Relationship  Amount 


$- 


Total $. 


RECEIVED  at  Olympia,  Washington,  this day  of 

19 — ,  of  the  State  Auditor,  Warrant  on  the  State  Treasurer  No 

for  the  sum  of* Dollars  (*$ )  in  full  compen- 
sation and  pension  on  account  of  said  injury  and  death  for  the 
month  ending ,  19__,  and  I  hereby  fully  release  and  dis- 
charge the  State  of  Washington  from  any  and  all  further  claims  for 

compensation  or  pension  for  said  month  ending ,  on 

account  of  said  death. 

(Sign  Here) 

(Write  Name  Clearly)  Payee. 

Witnesses : 

Post  Office  Address 

Post  Office  Address 

*Leave  amount  blank — to  be  filled  in  by  Auditor. 


397  WASHINGTON  ACT.  §  160 

§  160.     Form  of  burial  expense  voucher — Account 
of  deceased  workman,  (x) 

Claim 

Class 

STATE  OF  WASHINGTON, 

To ,  Dr. 

Postoffice  address) 

Compensation  under  Chapter  74,  Session  Laws  1911,  for  $ 

Burial  Expense  of ,  who  sustained  fatal  injury 

on  the day  of ,  191__,  at 

Washington,  as  allowed  and  approved  by  the  order  of  the 
Industrial    Insurance    Commission    on    record,    file    (page 

)  in  the  Commission's  office. 

STATE  OF  WASHINGTON,  County  of ,  ss: 

Received  at  Olympia,  Washington,  this day  of , 

191__,  of  the  State  Auditor,  warrant  on  the  State  Treasurer  No 

for  the  sum  of* Dollars, 

(Do  not  fill  in  this  amount) 
*($ )  in  full  compensation  as  allowed  under 

(Leave  this  space  blank) 

the  above  mentioned  act,  for  the  burial  of  said  deceased  by 

• ,  undertakers;    and  I  hereby  certify  that  the 

above  mentioned  amount  is  true  and  correct  and  is  due  for  services 
performed   by   me   as   said   undertaker    in   reimbursement   on    the 

amount  of  $ paid  by  me  to  said  undertaker. 

Signature 

For Payee. 

Subscribed  and  sworn  to  before  me  this day  of , 

A.  D.  191__ 

Notary  Seal  Here.  

(Title  of  office) 

STATE  OF  WASHINGTON,  County  of  Thurston,  ss : 

We,  the  Industrial  Insurance  Commission  of  the  State  of  Wash- 
ington, hereby  certify  that  the  claim  for  burial  expense  above  men- 
tioned has  been  investigated,  approved  and  regularly  allowed  by 

the  Commission  in  the  sum  of Dollars, 

said  sum  to  be  paid  out  of  the  "Accident  Fund"  as  by  Chapter  74, 

Session  Laws  1911,  required  and  provided. 

Attest: 


Chairman. 
Commissioner. 
Secretary.  Commissioner. 


*Leave  amount  blank  to  be  filled  by  auditor. 


§  161      WORKMEN'S  COMPENSATION  AND  INSURANCE.      398 
§  161.     Form  of  final  settlement  voucher,  (y) 

STATE  OP  WASHINGTON, 

To ,  Dr. 

(Claim  No )     (Class  No )     (Postoffice  address) 

AWARD,   Computed   on   basis   of   time   lost working 

days,   $ $ 

Permanent  Partial  Disability  sustained $ 

being  compensation  under  Chapter  74,  Session  Laws  1911,  in 
full  settlement  of  Claim  of  above  claimant  for  injury 


occurring  on  the day  of ,  191 ,  at 

,  Washington,  as  allowed  and  approved  by  the 

findings  and  order  of  the  Industrial  Insurance  Commission 

on  record,  file  (page )  in  the  Commission's  office. 

STATE  OF  WASHINGTON,  County  of ,  ss: 

Received  at  Olympia,  Washington ,  191__,  of 

the  STATE  AUDITOR,  warrant  on  the  State  Treasurer,  No __, 

for  the  sum  of* ! Dollars, 

(Do  not  fill  in  this  amount) 
*$ ,  I  the  undersigned,  do  hereby  certify 

(Leave  this  space  blank) 

that  the  injury  above  mentioned  actually  happened  to  me,  as  hereto- 
fore reported  to  the  Industrial  Insurance  Commission;  that  I  here- 
by acknowledge  receipt  of  the  amount  above  mentioned  as  full  and 
complete  compensation  for  said  injury,  and  I  hereby  fully  release 
and  discharge  the  State  of  Washington  from  any  and  all  further 
liability  or  obligations  for  or  on  account  of  said  injury  and  from 
any  other  or  further  claims  for  compensation  on  account  thereof. 

(Sign  Here) 

(Write  Name  Clearly)  Payee. 

Witnesses  to  Signature : 

Postoffice  address 

Postoffice  address— 


STATE  OF  WASHINGTON,  County  of ,  ss: 

We,  the  Industrial  Insurance  Commission  of  the  State  of  Wash- 
ington, hereby  certify  that  the  claim  for  compensation  above  men- 


*Leave  amount  blank  to  be  filled  by  auditor. 


399  WASHINGTON  ACT.  §  162 

tioned  has  been  investigated,  approved  and  regularly  allowed  by  the 

Commission  in  the  sum  of __Dollars, 

said  sum  to  be  paid  out  of  the  "Accident  Fund"  as  by  Chapter  74, 
Session  Laws  1911,  required  and  provided. 


Chairman. 
Attest: 


Commissioner. 
Secretary.  Commissioner 

§  162.  Form  of  election  to  receive  compensation 
and  assignment  of  claim — Injuries  by  defaulting  em- 
ployer, (z) 

WHEREAS,  on  or  about ,  19__, 

(Name  of  Employ^.) 
employed  by , 

(Name  of  Employer) 

of ,  while  in  the  course  of  his  employment, 

received  injuries  as  follows: 

(State  Nature  and  Result  of  Injuries) 


and, 

WHEREAS,  such  injuries  occurred  during  a  period  of  default  in 
the  payment  of  a  premium  due  by  such  employer  under  the  provi- 
sions of  Chapter  74,  of  the  Laws  of  1911,  after  demand  for  the  pay- 
ment thereof; 

NOW,  THEREFORE, 

(Name  of  Injured  Person,  Widow,  Children,  or  Dependents, 
as  the  case  may  be) 

hereby  elect—  to  receive  compensation  for  such  injuries  under  and 
in  accordance  with  said  Chapter  74,  Laws  of  1911;   and, 

In  consideration  of  the  premises  hereby  assign.,  and  transfer.. 


§  163      WORKMEN'S  COMPENSATION  AND  INSURANCE.      400 

to  the  State  of  Washington,  for  the  benefit  of  the  accident  fund 
created  by  said  act,  any  and  all  rights  or  causes  of  action,  and  all 
claims  and  demands  against  said  employer  arising  out  of  the  injuries 
above  described. 


Witnesses: 


§  163.  Election  to  receive  compensation  and  assign- 
ment of  claim — Injury  by  other  than  employer,  (zz) 

Whereas,  on  or  about  ,   19 — , 

,    employed    by , 

(Name  of  employe.)  (Name  of  employer.) 

of ,  while  in  the  course  of  his  employment, 

away  from  the  plant  of  his  employer,  received  injuries  as  follows: 

(State  nature  and  result  of 

injuries),  and, 

Whereas,  such  injuries  were  due  to  the  negligence  or  wrong  of 

another  not  in  the  same  employ,  viz.,  , 

servants  or  agents; 

Now,  therefore,  (Name   of 

injured  person,  widow,  children  or  dependents,  as  the  case  may  be) 
hereby  elect—  to  receive  compensation  for  such  injuries  under  and 
in  accordance  with  the  provisions  of  Chapter  74,  of  the  Laws  of 
1911;  and, 

In  consideration  of  the  premises  hereby  assign —  and  transfer — 
to  the  State  of  Washington,  for  the  benefit  of  the  accident  fund 
created  by  said  act,  any  and  all  rights  or  causes  of  action,  and  all 
claims  and  demands  against  any  and  all  persons  and  corporations 
arising  out  of  the  injuries  above  described. 

Witnesses : 


401 


WASHINGTON  ACT. 


§I63 


<  OS  i-H      I  r-l  I  I  I  I  iH  |      I      1 1 

I  I  I  I  I  III 

I  I  I  I  I  III 

I  I  I  I  I  III 


>  " 
*  5 

*j  5 


CO  «O  O»  O  OS  CO  «O  to  SO  T-l  00  t-  CO  IO  O»  t-  O  C-  «O  •*  CO  tD  OJ  OS  OJ  OO  00  IO  l-l  fr-  <O  «>  O>  CO  CO  OS  «O  Id  IO  O  O  IO 


Ctf   £J        Cp^cONI^CO<O^OOOlONNOOt-t-'H_OT^IHiHO<NlrteOi--IC-t-OOCOOOTC}'<»'Ot-u5®C>'')'e<l  tOOO 

Kff^     t~  cb^Tj^i-J^t^  co~co^  i^Tcsf  c*fr4c<f  •^COIH'CO'     tfToc^csf     oi     ^o^^io"     ccTc^c^u^c<rc<ri-r     r-i 


COOIOCJU3 

UO  CD  -^  OOTH 
OC^OOr-lOi 


O  00  O  OO  CO  OO  CO  00  ^  O  CO 


5  O5  O  rH  •<**  OS 


Cv]  iH  O  COCOl 
rHrjOi       rH 


O        -1 


ooV«"5     oo 


i-l  -0<COlOr-l        00 


C   -« 


26— BOTD  W  C 


§  164     WORKMEN'S  COMPENSATION  AND  INSURANCE.     402 

§  164.  Statistical  reports  on  the  operation  of  the 
act. — The  Washington  Industrial  Insurance  Commission 
have  published  Reviews  of  the  first  four,  eight  and 
twelve  months'  operation  of  their  administration  of  the 
Washington  law  which  give  very  important  statistical 
results  of  the  status  of  the  forty-eight  funds  which  have 
been  created  by  the  contributions  made  by  the  corre- 
sponding classes  of  employers  and  from  which  the  in- 
jured workers  have  been  paid  and  awarded  their  com- 
pensations. Their  report  for  the  first  year's  operation 
of  the  act  is  given  in  the  following  section.  These 
statements  are  of  very  great  importance,  not  only  to 
lawyers,  judges,  economists  and  legislative  agents  of 
the  State  of  Washington,  but  to  those  of  States  having 
on  their  statute  books  similar  laws,  or  of  States  which 
contemplate  the  enactment  of  such  laws. 

§  165.     Review  of  the  first  year's  operation  of  act. 

SUMMARY  OF  OPERATION. 

Firms  listed  and  assessed 5,750 

Employes  listed  and  protected 130,000 

Total  accidents  reported   11,896 

Claims  allowed  6,984 

Disallowed,  suspended  and  waived 2,256 

In  process  of  adjustment 953 

Accident  report  incomplete 1,703 

Paid  into  accident  fund $980,445.75 

Paid   out  on   claims •• $445,527.51 

Invested  in  interest-bearing  reserves    to    guarantee 

pensions    243,984.95 

Net  balance  in  accident  fund 290,933.29 

Gross  expense  of  commission 107,868.08 

Total  funds  handled  by  commission . ..  1,088,313.83 

Expense  of  doing  business 9.9  per  cent. 

When  the  act  was  under  discussion  in  the  legislature  and, 
even  after  it  had  become  effective,  the  statement  was  made  re- 
peatedly that  no  state  commission,  without  the  spur  of  profit, 
could  administer  the  law  without  wasting  thousands  of  dollars. 

"No  state,"  said  the  law's  critics,  "can  do  business  as  cheaply 
as  a  private  company."  And  yet,  where  the  private  casualty  com- 


4°3  WASHINGTON  ACT.  §  165 

pany  is  spending  over  sixty  per  cent,  to  handle  its  business,  the 
state  is  doing  it  for  nine  and  nine-tenths  per  cent.  The  German 
Imperial  system  of  compensation  costs  twelve  and  eight-tenths 
per  cent,  for  administration. 

Million  Dollar  Accident  Fund. 

The  preliminary  audit  for  October,  November  and  December, 
1911,  and  its  resulting  assessments  up  to  January,  1912,  secured  for 
the  administration  of  the  accident  fund  $428,057.42.  The  re-audit 
and  the  resumption  of  active  logging  and  mill  operations  in  April 
increased  the  accident  fund  to  $640,951.30.  A  year's  contributions 
have  nearly  touched  the  million  mark,  the  gross  amount  collected 
up  to  midnight,  September  30th,  being  $980,445.75. 

The  gross  year's  result  then  is  the  sum  of  nearly  one  million 
dollars  collected  and  $689,512.16  paid  out  to  injured  workmen  and 
invested  in  reserves  to  guarantee  pensions. 

Paid  out  directly  to  claimants  without  expense  of  litigation  or 
serious  cost  to  the  state  at  large,  $445,527.21  which  went  to  injured 
workmen  and  their  dependents.  To  insure  the  payment  of  pensions, 
now  being  distributed  monthly  to  the  dependents  of  121  injured 
workmen,  the  state  treasurer  has  set  aside  $243,984.95,  now  bearing 
interest  at  an  average  rate  of  5*4  per  cent. 

Under  the  casualty  insurance  system,  $600,000  was  collected  an- 
nually from  the  manufacturers  of  the  state,  less  than  $100,000  found 
its  way  back  to  the  injured  workman.  Today,  with  a  quarter  of  a 
million  invested  in  Washington  bonds,  school,  county  and  municipal, 
permanently  invested  and  assisting  in  the  state's  development, 
nearly  a  half  million,  net,  has  been  paid  from  the  accident  fund  to 
relieve  the  needs  of  injured  workmen,  their  families  and  depen- 
dents. 

Pensioners  Number  235. 

Naturally,  the  pension  roll  of  the  Commission  is  increasing. 
From  the  one  pensioner  in  October,  1911,  with  a  monthly  income 
of  $25.00,  the  roll  has  swelled  to  235,  with  a  monthly  payroll  of 
$2,364.50. 

Stated  briefly,  the. death  claims  brought  before  the  Commission 
are  in  process  as  follows: 

Pensions   awarded   121 

Suspended  and  rejected r -  191 

(No  dependents) 

Under   Investigation    38 

Incomplete    

Total  — . 282 


§  1 65      WORKMEN'S  COMPENSATION  AND  INSURANCE.      404 

Preliminary  figures  on  1,000  cases  indicate  that  less  than  three 
per  cent,  of  all  accidents  reported  under  the  Workmen's  Compen- 
sation Act  show  a  liability  that  would  be  good  for  a  verdict  under 
the  old  law,  consequently  97  per  cent,  of  all  the  above  cases  would 
be  probably  uncompensated  under  the  casualty  system. 

The  monthly  average  of  accidents  has  increased  inevitably 
owing  to  the  resumption  of  business  and  a  better  understanding  of 
the  law.  In  February,  1912,  it  was  about  eight  hundred  a  month. 
In  September  of  the  same  year,  the  total  was  nearly  one  thousand. 
11,896  formal  reports  of  accidents  were  received  during  the  year. 

Why  Contractors  Are  Continuously  Assessed. 

The  chief  auditor's  statement  of  the  condition  of  the  accident 
fund  at  the  end  of  one  year's  operation  is  interesting.  In  the  first 
eight  classes,  continuous  assessments  have  been  made  by  the  Com- 
mission. The  reasons  for  these  continuous  assessments  are  set 
forth  briefly  as  follows: 

1.  No  class  of  the  first  eight  has  a  balance  that  a  series  of 
fatal  accidents  would  not  reduce  below  a  point  of  safety. 

2.  If  assessments   had   not  been   continuous  the   small   con- 
tractor might  have  escaped  paying  on  his  short-term  contracts. 

3.  Accidents    have   been    continuous    and    assessments    would 
have  been  levied  finally  to  pay  accident-costs  in  any  event,  the 
difference  being  that  the  larger  contractor,  being  well  established 
and  easily  accessible,  would  have  been  compelled  to  carry  the  cost, 
not  only  of  his  own  accidents,  but  also  of  those  occurring  on  the 
work  of  the  small  contractor  who  might  have  escaped  assessment. 

4.  The  placing  of  competitors  on  the  same  plane  for  the  pur- 
pose of  bidding  on  contracts  demands  that  every  contractor  shall  be 
assessed  on  every  job.     If  the  rates  are  too  high,  the  legislature 
can  adjust  them. 

5.  The  general  contractor  is  often  listed  in  several  classes; 
sometimes  on  big  jobs,  sometimes  on  small,  sometimes  idle;  now 
on  public  work,  secured  by  law;  now  on  private  work  where  the 
owner  may  be  holden  and  subjected  to  loss.     The  only  safe  way 
seems  tc  be  continuous  assessment  until  the  fund  reaches  a  figure 
where  all  can  be  relieved.    In  any  case,  the  law  provides  a  read- 
justment of  accounts  each  year,  so  that  the  inequities  or  over- 
payments may  be  corrected. 

6.  The  extreme  hazard  of  all  operations  in  the  contractors' 
classes   compels   a   wide   margin   of   safety;    hence   the   inflexible 
rulings  aforesaid. 

Legislative  Remedy  for  "Casual  Employment  Problem." 

In  this  connection,  the  need  is  emphasized  of  legislation  to 
<:over  the  whole  matter  of  casual  employment.  The  farmer  who 


4°5  WASHINGTON  ACT.  §  165 

"lets  a  contract"  for  a  barn,  cattle  shed  or  hog  pen;  the  private 
person  who  builds  himself  a  bungalow  by  day  labor;  the  business 
man  who  puts  up  a  grand  stand,  dancing  pavillion  or  boat  house; 
the  rancher  who  "hires  out"  a  land  clearing  job;  the  property 
owner  who  "hires  help"  to  paint  his  hotel,  block  or  apartment 
house;  all  of  these  operations  are  extremely  difficult  to  list  and 
assess.  Practically  never  does  the  Commission  hear  of  them  except 
when  an  accident  occurs;  then  both  employer  and  employe"  hasten 
to  contribute  and  demand  compensation  respectively. 

In  one  typical  case,  the  contribution  of  the  employer,  who  was 
discovered  only  after  a  carpenter  had  lost  his  eye  through  a  flying 
nail,  was  $3.85,  while  the  accident  cost  the  employers  of  class  5 
$1,064.60. 

Some  penalty  for  concealment  of  payroll  will  doubtless  be 
imposed  by  the  next  legislature. 

Lumbermen's  Class  at  Flat  Cost. 

In  class  10,  lumbering,  logging,  etc.,  the  law  permits  a  rate 
of  $2.50  per  hundred  dollars  of  payroll.  A  call  was  made  on  these 
industries  for  seven  months'  assessments,  resulting  in  a  fund  of 
$324,102.86,  from  which  claims  were  paid  to  the  amount  of  $206,- 
146.50,  with  $117,366.32  invested  in  reserves.  This  class,  with  a  net 
balance  of  only  $590.04  has  been  watched  very  closely  for  purposes 
of  comparison.  Fortunately,  the  size  of  the  class  and  the  condition 
of  business  makes  it  possible  to  replenish  this  fund  at  once  by 
another  call,  which  is  now  in  progress.  Meanwhile,  the  flat  cost  of 
compensation  is  apparent  from  the  showing,  the  actual  rate  being 
$1.46  per  hundred  dollars. 

In  Class  10,  Accounts  Receivable  (uncollected  premiums), 
amounted  Oct.  1,  to  $53,562.  Accounts  Payable,  including  reserves 
on  7  death  claims  and  award  vouchers  mailed  out  but  not  yet 
signed  or  certified  to  the  state  auditor  for  warrants,  aggregate 
practically  the  same  amount. 

Attention  is  frequently  directed  to  the  printing  trade — Class  41, 
on  which  the  law  fixes  a  rate  of  $1.50  per  hundred.  The  prelimi- 
nary assessment  created  a  fund  of  $6,519.19,  only  $1,345.65  of  which 
was  required  to  pay  accident-loss.  The  assessed  rate  was  therefore 
thirty-eight  cents  per  one  hundred  dollars,  but  the  accidents  only 
required  a  rate  of  seven  cents  per  hundred  dollars.  Clearly  this 
fund  will  be  sufficient  for  many  months  to  come. 

Low  Insurance  Cost  to  Employers. 

Classes  30,  asphalt  manufacturing,  and  45,  theater  stage  em- 
ploye's, have  had  no  accidents  charged  against  them,  but  their 
diminutive  funds  of  $971.50  and  $445.14  respectively  would  be  swept 


Rates 

Rates 

per  $100 

per  $100 

Assessed 

Neces- 

sary 

.75 

.14 

.50 

.13 

.38 

.12 

.38 

.09 

.38 

.05 

.50 

.27 

.61 

.18 

§  165      WORKMEN'S  COMPENSATION  AND  INSURANCE.      406 

away  by  one  serious  accident.     Other  classes  showing  very  small 
percentages  of  rate  required  to  meet  accident  cost  are  as  follows: 

Rate 

per  $100 
Fixed 

by  Law 

Class  33,  Fish   Canneries   $3.00 

Class  35,  Brick  Manufacture  2.00 

Class  38,  Textile   Manufactures    1.50 

Class  39,  Food  Stuffs 1.50 

Class  40,  Creameries 1.50 

Class  44,  Ice  Manufacturing  2.00 

Class  47,  Creosoting   Works    2.50 

The  non-hazardous  class,  created  under  section  19  of  the  act, 
by  which  employers  and  employe's  may  elect  to  come  under  the  act, 
even  though  excluded  by  the  nature  of  their  work,  is  growing  in 
favor.  It  provides  mutual  protection  at  a  rate  of  $1.35  per  hundred 
dollars.  The  Commission  collected  three  months'  premium  from 
these  employers,  $1,092.30,  at  a  rate  of  thirty-four  cents  per  hun- 
dred dollars,  but  only  $83.95  was  required  for  meeting  the  accident- 
loss,  a  necessary  rate  of  only  three  cents  per  one  hundred  dollars. 

Another  class  which  shows  a  remarkable  record  of  low  acci- 
dent-cost is  14,  street  railways.  With  a  legal  rate  of  $3.00  per 
hundred  dollars  the  Commission  collected  the  statutory  three 
months'  contribution,  rate  seventy-five  cents,  with  the  result  that 
only  twenty-three  cents  per  hundred  dollars  was  required  to  com- 
pensate injured  workmen  in  that  class.  The  most  liberal  rulings 
were  adopted  in  compensating  accidents  occurring  in  connection 
with  street  railways  after  full  consultation  with  the  street  railway 
companies.  Compensation  was  paid  in  cases  where  a  conductor 
was  beaten  by  a  passenger,  where  a  motorman  was  assaulted  by  a 
truck  driver  and  even  where  a  conductor  was  bitten  by  a  dying  dog 
run  over  by  the  car,  yet  the  rate  of  twenty-three  cents  per  hundred 
dollars  carried  all  awards  made  by  the  Commission. 


Hazardous  Bisks  at  Low  Bate. 

Coal  mining,  Class  16,  one  of  the  most  hazardous  industries  in 
the  state,  secured  a  fund  of  $82,398.83  by  a  six  months'  call,  $40,- 
816.61  of  which  was  paid  out  for  accidents,  and  $28,041.23  invested 
in  pension  reserves.  The  legal  rate  is  $3.00  per  hundred  dollars, 
and  the  assessed  rate  $1.50,  the  necessary  rate  $1.23.  The  same 
thing  applies  to  quarries,  with  a  legal  rate  of  $4.00,  assessed  rate  of 
$1.33,  and  required  rate  of  sixty-eight  cents  per  hundred  dollars. 

Laundries,  a  class  in  which  several  employers  deliberately  be- 
came defaulters,  the  legal  rate  is  $2.00  per  hundred  dollars,  but 


WASHINGTON  ACT.  §  165 

three  months'  assessment,  rate  fifty  cents  per  hundred  dollars 
created  a  fund  of  $7,671.21,  out  of  which  the  accident-cost  required 
$2,542.90,  a  rate  of  only  seventeen  cents  per  hundred  dollars. 

The  Powder  Mill  Class. 

Class  46,  powder  manufacturers,  is  still  overdrawn,  but  the 
fund's  condition,  as  it  would  have  been  with  the  proper  contribu- 
tions collected,  is  interesting: 

10%  of  payrolls  for  Oct.,  Nov.,  Dec. $  3,956.49 

Shortage  on  January  1st 4,302.86 

10%  of  payrolls  for  Jan.  1  to  Oct.  1 _  11,811.99 


Total  $20,071.34 

Less  pension  reserves  and  burial  allowances 8,259.35 


$11,811.99 

Penalty  on  Imperial  Powder  Company 1,297.16 

(Employed  two  girls  under  lawful  age) 


Balance  if  paid $13,109.15 

A  rate  of  five  per  cent,  would  have  been  sufficient  to  pay  for  the 
accidents  in  the  powder  mill  class  even  with  the  Chehalis  disaster 
victims  fully  compensated. 

No  rates  are  extended  in  the  first  eight  classes,  continuous 
assessment  and  the  varied  ratings  in  each  class  making  comparison 
impracticable. 

Appeals. 

Out  of  the  awards,  suspensions  and  rejections  made  on  the 
twelve  thousand  accident  reports,  only  twenty-one  appeals  have 
been  taken  to  the  courts.  Of  these,  three  were  withdrawn  and 
three  tried.  The  remainder  are  still  pending.  Only  one  appeal  is 
by  an  employer,  three  are  by  dependents  and  the  remainder  by  the 
workmen  themselves.  One  appeal  involves  jurisdiction  over  inter- 
state commerce;  one  whether  a  minor's  dependent  parents  can 
receive  a  pension  for  life.  In  only  two  cases  permanent  disabilities 
have  been  found  by  the  jury,  contrary  to  the  Commission's  judg- 
ment. 

Suits  aggregating  forty-three  in  number  have  been  instituted 
by  the  attorney  general  against  defaulting  employers  to  collect  the 
premiums  due  from  them  to  the  Accident  Fund.  Of  these  forty-three 
cases,  seventeen  were  settled  before  judgment,  four  were  settled 
subsequent  to  judgment,  while  in  seven  of  the  cases  Judgments 
have  been  entered  but  not  yet  collected.  One  case  was  discontinued 
because  the  plant  was  not  in  operation  after  October  1,  1911.  One 
other  case  was  discontinued  for  the  reason  that  the  employer  had 
no  one  in  his  employ  subsequent  to  October  1,  1911.  Thirteen  of 
the  forty-three  cases  are  still  pending. 


§  1 66     WORKMEN'S  COMPENSATION  AND  INSURANCE.     408 

§  166.  Official  state  safety  bulletin. — The  Industrial 
Insurance  Commission  of  Washington,  the  State 
Bureau  of  Labor  and  the  Governor  of  the  State,  August 
1,  1912,  inaugurated  a  campaign  for  the  reduction  of 
accidents  by  the  circulation  and  posting  of  a  safety  bul- 
letin in  the  following  form : 

PREVENT  ACCIDENTS! 

1.  "Safety  first — better  cause  a  delay  than  an  accident." 

2.  10  per  cent,  of  the  men  employed  are  being  hurt — that's  too 
many. 

3.  Every  accident  costs  money — money  should  buy  comforts, 
not  be  wasted  on  preventable  pain. 

4.  Help  to  prevent  accidents.     It  is  a  duty  you  owe  yourself, 
your  fellow  workmen,  your  family,  their  families,  the  employer  and 
the  State. 

5.  "An  accident  that  could  have  been  prevented  by  a  safety  de- 
vice is  a  disgrace  to  an  employer.    It  shows  either  a  lack  of  care  or 
a  lack  of  efficiency." — Don  D.  Lesoohier. 

6.  "The  amount  of  sorrow  and  suffering  that  will  be  eliminated 
when  safety  work  is  taken  up  earnestly  by  our  manufacturers  is  be- 
yond the  comprehension  of  those  who  have  not  given  the  subject 
careful  thought." — Safety  Secretary  Young,  Illinois  Steel  Co. 

7.  "Safety  committees  composed  of  the  men,  not  the  superin- 
tendents or  foremen,  but  the  men,  are  the  best  inspectors.    They  will 
find  the  danger  points  and  suggest  remedies,  and  then  they  will  make 
the  suggestions  go  because  they  are  their  own  ideas." — Chairman 
Richards,  Safety  Committee,  C.  &  N.  W.  Ry. 

8.  "In  1909  few  competent  authorities  dared  to  assert  that  more 
than  50  per  cent,  of  the  industrial  accidents  were  preventable.    To- 
day we  do  not  hesitate  to  say  that  75  per  cent,  are  preventable." — 
Minnesota  Bureau  of  Labor. 

9.  Every  injury,  no  matter  how  slight,  should  receive  proper 
medical  attention.  Infection — blood  poison — results  from  ignorance 
and  neglect.  Amputations  often  follow. 

10.  "Constant  and  close  supervision  by  competent  superintend- 
ents and  foremen  can  prevent  accidents  in  those  operations  (such  as 
logging  or  gravel  pit  work)  where  safety  devices  cannot  be  uti- 
lized."— Director  Van  Schaack,  Aetna  Insurance  Company. 

11.     PERSONAL  CAUSES  OF  ACCIDENTS. 

Minnesota  Bureau  of  Labor  Report,  1910 — Employers'  Opin- 
ions: 

Per 
Inherent  danger  of  industry  (includes  defective  and  insuffi-    cent. 

ciently  guarded  machinery) 61 


4°9  WASHINGTON  ACT.  §  1 66 

Contributory  negligence  of  employe"  (want  of  skill  and  careless- 
ness)    20.7 

Inherent  danger  and  contributory  negligence  combined 10.5 

Negligence  of  injured  employe _    3.6 

Negligence  of  fellow  workman _    3.1 

Fellow  workman  and  injured  employe  combined .    1.0 

Employer  1 


Total  (4,084  cases)  100 

12.  Every  accident  has  its  inevitable  and  definite  effect  upon 
the  cost  of  production  under  the  present  Compensation  Act.  The 
Commission  has  the  power  and  has  already  fixed  penal  rates  upon 
establishments  because  of  poor  or  careless  management  or  work 
unduly  dangerous.  The  workman's  instinct  of  self-preservation 
should  be  supplemented  by  the  wrath  of  his  foreman  when  he  is 
careless  of  the  safety  of  his  fellow  workers. 

INSTRUCTIONS. 

Do  not  take  off  any  safeguard  or  protective  device.  If  you  take 
a  chance  and  get  hurt,  it  decreases  your  compensation  10  per  cent. 
(Sec.  9,  Compensation  Act.)  If  the  superintendent,  foreman,  or  any 
other  person  removes  any  safeguard,  report  the  fact  to  this  Com- 
mission. 

Do  not  hesitate  to  lend  a  hand  when  anyone  is  hurt.  Call  any 
doctor  desired.  Compensation  is  paid,  regardless  of  whose  fault 
causes  the  injury.  Give  the  Commission  the  full  facts  fearlessly. 
Concealment  of  causes  helps  no  one. 

The  State  compels  employers  to  provide  funds  out  of  which  it 
pays  reasonable  compensation  in  case  of  injury. 

The  State  compels  employers  to  provide  funds  out  of  which 
it  pays  reasonable  compensation  in  case  of  injury.  If  you  do  not 
think  the  awards  sufficient,  remember  it  is  better  than  law  suits 
and  delays  under  the  old  system,  and  where  80  out  of  each  100 
injured  had  no  legal  remedy  whatever. 

There  is  no  fund  or  provision,  however,  for  payment  by  the 
State  of  charges  for  ambulance,  physician,  surgeon,  hospital,  nurse, 
medicine,  or  surgical  appliances.  The  "first-aid"  provision  was 
stricken  from  the  Compensation  Act  before  its  passage  by  the 
legislature. 

Much  needless  infection  and  time-loss  should  be  prevented  by 
the  employers  keeping  handy  a  supply  of  antiseptic  gause,  steri- 
lized bandages  (keep  free  from  dust  or  handling)  and  tincture  of 
iodine.  Paint  all  small  wounds,  bandage,  then  send  man  to  doctor. 

When  an  accident  happens  the  following  papers  should  be 
filled  out  and  mailed  at  once  to  Olympia: 

1.    The  employer's  report,  Form  (k)  (green). 


§  1 66      WORKMEN'S  COMPENSATION  AND  INSURANCE.      410 

2.  Workman's  claim  for  compensation,  Form  (1)  (white). 

3.  Report  of  attending  physician,  Form  (m)   (pink). 

4.  Report  of  witnesses,  Form   (o)    (buff). 

The  employer  should  keep  these  blanks  on  hand.  They  are 
furnished  free  by  the  State.  Unless  the  injury  causes  the  loss 
of  over  one  day's  time,  or  results  in  a  disability  that  impairs 
the  earning  capacity  5  per  cent.,  no  award  will  be  made  by  the 
Commission. 

Industrial  Insurance  Commission  of  Washington. 

By  J.  H.  Wallace, 

Hamilton  Higday, 

Commissioners. 


CHAPTER  XI. 

THE  OHIO  WORKMEN'S  INSURANCE  ACT. 


Sec.  Sec. 

167.  The    nature    of    the    Ohio      182. 

Workmen's  Insurance  act. 

168.  Ohio  act  an  insurance  act.         183. 

169.  Ohio  act  an  indirectly  com- 

pulsory act.  184. 

170.  Employer's    liability    under 

the  act.  185. 

171.  The  statute   and   its   inter- 

pretation by  the  board  and 
the  attorney-general. 

172.  The    decision    of    the    Su- 

preme Court  of  Ohio  sus-      186. 
taining  the  law. 

173.  Workshop    and   factory   in- 

spection    and      regulation 
act. 

174.  Rules   of  procedure   before      187. 

the  state  liability  board  of 
awards.  188. 

175.  Procedure  as  to  employers. 

176.  Forms  of  applications   and      189. 

notices  to  be  used  by  em- 
ployers   covered    by    the      190. 
act. 

177.  Form     of     application    for      191. 

classification    of   industry 
and  for  premium. 

178.  Form  of  supplementary  re- 

port— Accident  experience. 

179.  Form  of  notice  of  employer      192. 

to  employe's. 

180.  A   comparison   of  premium 

rates  under  the  Ohio  law 
with     liability     insurance 
rates  under  compensation      193. 
laws. 

181.  Procedure  as  to  injured  em-      194. 

ploygs. 

411 


Form  of  procedure  on  no- 
tices in  general. 

Form  of  first  notice  of  in- 
jury, (a) 

Form    of    first    notice    of 

,    death,  (b) 

Formal  procedure  for  pro- 
curing medical,  nurse,  and 
hospital  services  and  med- 
icines, without  compensa- 
tion. 

Form  of  application  for 
money  to  pay  for  medical, 
nurse  and  hospital  serv- 
ices and  medicines,  with- 
out compensation,  (a) 

Form  of  physician's  fee 
bill,  (b) 

Form  of  druggist's  cost 
bill,  (c) 

Form  of  employer's  certifi- 
cate and  oath,  (d) 

Form  of  certificate  and 
oath  of  lay  witness,  (e) 

Formal  procedure  to  obtain 
money  to  pay  for  medical, 
nurse  and  hospital  serv- 
ices and  medicines,  with 
compensation. 

Form  of  application  for 
money  to  pay  for  medical, 
nurse  and  hospital  serv- 
ices and  medicines,  with 
compensation,  (a) 

Form  of  employer's  certifi- 
cate and  oath,  (b) 

Form  of  physician's  fee 
bill,  (c) 


§  167     WORKMEN'S  COMPENSATION  AND  INSURANCE.     412 


Sec.  Sec. 

195.  Form    of     druggist's     cost      210. 

bill,  (d) 

196.  Form    of    medical    fee    bill       211. 

and  hospital  charges,  (e) 

197.  Form     of     certificate     and      212. 

oath  of  lay  witness,  (f) 

198.  Formal  procedure  to  obtain      213. 

compensation    in    case    of 
permanent  total  disability.      214. 

199.  Form     of     application     for 

money  to  pay  for  medical,       215. 
nurse   and   hospital   serv- 
ices  and   medicines,   with 
compensation,    (a) 

200.  Form  of  employer's  certifi- 

cate and  oath,  (b)  216. 

201.  Form     of     physician's    fee 

bill,  (c) 

202.  Form     of     druggist's     cost 

bill,  (d) 

203.  Form    of    medical    fee    bill      217. 

and  hospital  charges,   (e) 

204.  Form  of  certificate  and  oath      218. 

of  lay  witness,  (f) 

205.  Forms  to  obtain  money  to 

pay  for  medical,  hospital      219. 
and  funeral  expenses  on- 
ly. 

206.  Form     of     application    for      220. 

money    paid   for   medical, 
nurse   and   hospital   serv-       221. 
ices    and    medicines    and 
for  funeral  expenses,  with-      222. 
out  award,   (a) 

207.  Form  of  undertaker's  certi-      223. 

ficate  of  death   and   cost 

bill,  (b)  224. 

208.  Form  of  lay  witness's  cer- 

tificate in  proof  of  death.      225. 
(c) 

209.  Form  of  physician's  certifi- 

cate in  proof  of  death,  (d) 


Form  of  employer's  certifi- 
cate and  oath,  (e) 

Form  of  physician's  fee 
bill,  (f) 

Form  of  druggist's  cost 
bill,  (g) 

Form  of  medical  fee  bill 
and  hospital  charges,  (h) 

Form  of  certificate  and  oath 
of  lay  witness,  (i) 

Form  of  procedure  to  ob- 
tain compensation  and 
money  to  pay  for  medi- 
cal, hospital  and  funeral 
expenses. 

Form  of  application  for 
money  paid  for  medical, 
nurse  and  hospital  serv- 
ices and  medicines  and  for 
funeral  expenses,  (a) 

Form  of  proof  of  depend- 
ents, (b) 

Form  of  undertaker's  certi- 
ficate of  death  and  cost 
bill,  (c) 

Form  of  lay  witness's  cer- 
tificate in  proof  of  death, 
(d) 

Form  of  physician's  certifi- 
cate in  proof  of  death,  (e) 

Form  of  employer's  certifi- 
cate and  oath,  (f) 

Form  of  physician's  fee 
bill,  (g) 

Form  of  druggist's  cost 
bill,  (h) 

Form  of  medical  fee  bill  and 
hospital  charges,  (i) 

Form  of  certificate  and 
oath  of  lay  witness,  (j) 


§  167.  The  nature  of  the  Ohio  Workmen's  Insur- 
ance act. — The  distinction  between  Workmen's  Insur- 
ance and  Compensation  Acts  has  been  pointed  out  in 


413  OHIO  ACT.  §  1 68 

Chapter  I.  It  is  sometimes  loosely  said  that  statutes  of 
the  nature  of  the  British  Workmen's  Compensation  Act 
have  been  enacted  in  California,  Illinois,  Kansas,  Massa- 
chusetts, Nevada,  New  Hampshire,  New  Jersey,  New 
York,  Ohio,  Rhode  Island,  Washington  and  Wisconsin, 
but  this  statement  is  too  broad.  The  Workmen's  In- 
surance Acts  of  Ohio,  Washington  and  even  of  Massa- 
chusetts, are  specific  adaptations  of  the  German  In- 
dustrial Insurance  Law  and  the  legal  basis  for  these 
three  acts  is  found  in  the  taxing  power  of  the  State  exer- 
cised through  its  police  power  for  the  protection  of  the 
health,  safety  and  the  general  welfare  of  the  public.  The 
Compensation  Acts  of  the  nine  other  States  mentioned 
are  adaptations  of  the  British  Workmen's  Compensa- 
tion Acts  and  in  no  way  depend  upon  the  taxing  power 
of  the  States.  The  basis  of  the  two  kinds  of  acts  are 
fundamentally  different  under  our  constitutional  limita- 
tions. 

§  168.  Ohio  act  an  insurance  act. — The  Ohio  Act  is 
in  fact  a  workman's  Insurance  Act,  for  the  reason  that 
it  makes  the  claim  of  the  injured  workman  a  claim 
against  a  fund  and  not  against  his  employer,  as  is  the 
case  in  the  so-called  workman's  compensation  laws. 
There  are  only  two  exceptions  of  very  rare  occurrence  to 
this  statement.  The  first  is  that  in  which  the  State  Lia- 
bility Board  of  Awards  denies  the  injured  workman 
any  relief  whatever,  and  in  that  case  his  right  to  sue 
the  Board  of  Awards  is  preserved,  but  he  is  denied  the 
right  to  sue  his  employer.1  His  action  is  against  the 
board.  The  second  exception  occurs  where  a  personal 
injury  is  suffered  or  when  death  results  to  an  employe 
from  personal  injuries  which  have  "arisen  from  the 
willful  act  of  such  employer  of  any  such  employer's  offi- 
cers or  agents  from  the  failure  of  such  employer,  or  of 
any  of  such  employers'  officers  or  agents,  to  comply 

i  See  §  36  of  Act. 


§  169     WORKMEN'S  COMPENSATION  AND  INSURANCE.     414 

with  any  municipal  ordinance  or  lawful  order  of  any  duly 
authorized  officer,  or  any  statute  for  the  protection  of 
life  or  safety  of  employes."  This  is  the  only  case  in 
which  is  retained  the  right  of  the  employe  to  sue  his 
employer  who  has  paid  the  premium  prescribed  by  the 
Board  of  Awards.  An  injured  employe,  however,  who 
files  a  suit  on  such  a  claim  by  that  act  waives  any  claim 
to  compensation  from  the  fund  created  by  the  act.2 
The  rarity  of  such  an  occurrence  is  shown  by  reference 
to  the  operation  of  the  British  Compensation  Act.  The 
actual  figures  of  an  English  insurance  company  for  one 
year  (1908)  show  that  out  of  10,343  accidents  there  were 
only  fifty-five  employers'  liability  claims.3  This  showing 
is  made  stronger  when  it  is  understood  that  under  the 
British  Compensation  Act,  an  injured  employe  may  elect 
to  sue  at  law  or  accept  compensation  given  by  the  act, 
and  his  election  to  sue  does  not  deny  him  the  right  to 
compensation  under  the  Compensation  Act,  in  case  the 
suit  at  law  should  fail.  Under  the  Ohio  act,  however, 
the  moment  the  employe  files  his  suit  he  stakes  all  his 
chances  on  winning  his  suit  and  waives  any  claim  against 
the  fund,  and  he  has  more  to  prove  than  in  ordinary 
suits  at  law  previous  to  the  passage  of  the  act. 

§  169.     Ohio  act  an  indirectly  compulsory  act. — 

When  the  employer  has  paid  the  premium  and  posted 
the  notice  required  by  the  act3a  and  the  workman  con- 
tinues in  the  service  of  such  an  employer  and  is  injured 
he  is  compelled  to  accept  the  compensations  provided  by 
the  act,  excepting  the  rare  case  cited  in  the  preceding 
section.  The  act  is  in  fact  compulsory  on  the  part  of  the 
employe. 

2  See  §  21-2  of  Act. 

3  See  Senate  Document  No.  338,  62d  Congress,  2d  Session,  p. 
103,  Report  of  the  Employer's  Liability  and  Workmen's  Commis- 
sion of  the  United  States.    Feb.  21st,  1912. 

These  results  are  strongly  supported  by  the  experience  under 
the  Washington  Act.  See  review  of  eight  months  operation  by  the 
Industrial  Insurance  Commission  of  Washington;  ante  §  166. 

3*  See  §§  20-1. 


4^5  OHIO    ACT.  §  170 

A  color  of  option  on  the  part  of  the  employer  is 
found  in  section  20-1  of  the  Ohio  Act.  In  the  first  line 
the  word  "any"  was  inserted  in  the  place  of  "every,"  and 
in  the  third  line  the  word  "who"  was  inserted  before  the 
words  "shall  pay,  etc.,"  by  the  opponents  of  the  manda- 
tory form  of  the  original  draft  of  the  law.  The  penalty, 
however,  for  the  failure  to  pay  the  premiums  prescribed 
by  the  law,  namely,  the  taking  away  of  all  of  the  com- 
mon-law defenses  from  the  employer,  remains  in  the 
law,  and  is  the  same  penalty  recommended  by  the  Em- 
ployer's Liability  Commission  of  Ohio  when  the  draft  of 
the  law  was  in  the  mandatory  form.  The  law  in  effect  is 
mandatory. 

§  170.  Employers'  liability  under  the  act. — Briefly 
stated,  the  law  is  that  the  employer  who  employs  five 
or  more  workmen  or  operatives  regularly  in  the  same 
business  is  relieved  from  all  liability  for  injuries  in  course 
of  employment  where  he  pays  into  the  State  insurance 
fund  the  premiums  fixed  by  the  State  Liability  Board 
of  Awards.  The  exception  is  in  the  case  of  injuries  wil- 
fully inflicted  by  the  employer.  Where  the  premiums 
are  not  paid  the  employer  is  liable  as  under  the  common 
law,  except  that  he  is  denied  the  common-law  defenses. 

§  171.  The  statute  and  its  interpretation  by  the 
board  and  the  attorney-general. — The  Ohio  Act  is  en- 
titled an  act  to  create  a  State  insurance  fund  for  the 
benefit  of  injured,  and  the  dependents  of  killed  em- 
ployes, and  to  provide  for  the  administration  of  such 
fund  by  a  State  liability  board  of  awards,  and  reads  as 
follows : 

Sec.  1.  There  is  hereby  created  a  State  liability 
board  of  awards,  to  be  composed  of  three  members, 
not  more  than  two  of  whom  shall  belong  to  the  same 
political  party,  to  be  appointed  by  the  governor,  within 
thirty  days  after  the  passage  of  this  act,  one  of  which 
members  shall  be  appointed  for  the  term  of  two  years, 


§  171      WORKMEN'S  COMPENSATION  AND  INSURANCE.      416 

one  member  for  four  years  and  one  member  for  six 
years,  and  thereafter  as  their  terms  expire  the  governor 
shall  appoint  one  member  for  the  term  of  six  years.  Va- 
cancies shall  be  filled  by  appointment  by  the  governor 
for  the  unexpired  term. 

Note  by  the  board. — In  obedience  to  the  provisions  of  this  sec- 
tion, Governor  Harmon,  on  July  14,  1911,  appointed  as  members  of 
the  State  Liability  Board  of  Awards,  Mr.  T.  J.  Duffy,  of  East  Liver- 
pool, Democrat,  for  a  term  of  two  years;  Mr.  William  A.  Grieves, 
of  Columbus,  Republican,  for  a  term  of  four  years;  and  Mr.  Wallace 
D.  Yaple,  of  Chillicothe,  Democrat,  for  a  term  of  six  years.  On 
July  25,  1911,  Mr.  Grieves  resigned  and  on  August  24,  1911,  the 
Governor  appointed  Mr.  Morris  Woodhull,  of  Dayton,  to  fill  the 
vacancy  thus  created.  Mr.  Duffy  has  for  some  years  been  Presi- 
dent of  the  National  Potters'  Association;  Mr.  Woodhull  is  a  man- 
ufacturer; and  Mr.  Yaple  is  a  lawyer. 

Sec.  2.  Each  member  of  the  board  shall  devote  his 
entire  time  to  the  duties  of  his  office  and  shall  not  hold 
any  position  of  trust  or  profit  or  engage  in  any  occupa- 
tion or  business  interfering  or  inconsistent  with  his  duty 
as  such  member,  or  serve  on  or  under  any  committee  of 
any  political  party. 

Note  by  the  board. — Each  member  of  the  board  upon  his  ap- 
pointment promptly  complied  with  the  requirements  of  this  section. 

Sec.  3.  Each  member  of  the  board  shall  receive  an 
annual  salary  of  five  thousand  dollars,  payable  in  the 
same  manner  as  salaries  of  State  officers  are  paid. 

Sec.  4.  The  board  shall  be  in  continuous  session 
and  open  for  the  transaction  of  business  during  all  the 
business  hours  of  each  and  every  day,  excepting  Sun- 
days and  legal  holidays.  All  sessions  shall  be  open  to 
the  public,  and  shall  stand  and  be  adjourned  without 
further  notice  thereof  on  its  records.  All  proceedings 
of  the  board  shall  be  shown  on  its  record  of  proceedings, 
which  shall  be  a  public  record,  and  shall  contain  a  record 
of  each  case  considered,  and  the  award  made  with  re- 
spect thereto,  and  all  voting  shall  be  had  by  the  calling 


41/  OHIO    ACT.  §  iji 

of  each  member's  name  by  the  secretary  and  each  vote 
shall  be  recorded  as  cast. 

Note  by  the  board.— See  note  to  Section  6. 

Sec.  5.  A  majority  of  the  board  shall  constitute  a 
quorum  for  the  transaction  of  business,  and  a  vacancy 
shall  not  impair  the  right  of  the  remaining  members  to 
exercise  all  the  powers  of  the  full  board  so  long  as  a 
majority  remains.  Any  investigations,  inquiry  or  hear- 
ing which  the  board  is  authorized  to  hold,  or  undertake, 
may  be  held  or  undertaken  by  or  before  any  one  member 
of  the  board.  All  investigations,  inquiries,  hearings  and 
decisions  of  the  board,  and  every  order  made  by  a  mem- 
ber thereof,  when  approved  and  confirmed  by  a  majority 
of  the  members,  and  so  shown  on  its  record  of  proceed- 
ings, shall  be  deemed  to  be  the  order  of  the  board. 

Note  by  the  board.— See  note  to  Section  6. 

Sec.  6.  The  board  shall  keep  and  maintain  its  office 
in  the  city  of  Columbus,  and  shall  provide  a  suitable 
room  or  rooms,  necessary  office  furniture,  supplies, 
books,  periodicals  and  maps.  All  necessary  expenses 
shall  be  audited  and  paid  out  of  the  State  treasury.  The 
board  may  hold  sessions  at  any  place  within  the  State. 

Note  by  the  board. — The  Board  is  maintaining  offices  on  the 
sixth  floor  of  the  Hartman  Building,  corner  of  State  and  Third 
Streets,  Columbus,  Ohio. 

Daily  sessions  of  the  Board  are  held,  and  all  sessions  are  open 
to  the  public.  The  proceedings  of  the  Board  are  recorded  in  its 
minutes,  and  in  addition,  a  separate  system  of  records  is  main- 
tained in  the  claims  department,  which  department  is  In  charge  of 
the  Chief  Clerk. 

Sec.  7.  The  board  may  employ  a  secretary,  actuary, ' 
accountants,  inspectors,  examiners,  experts,  clerks, 
stenographers  and  other  assistants,  and  fix  their  com- 
pensation. Such  employments  and  compensations  shail 
be  first  approved  by  the  governor,  and  shall  be  paid  out 
of  the  State  treasury.  The  members  of  the  board,  ac- 

27— BOYD  W  C 


§  171      WORKMEN'S  COMPENSATION  AND  INSURANCE.     418 

tuaries,  accountants,  inspectors,  examiners,  experts, 
clerks,  stenographers  and  other  assistants  that  may  be 
employed  shall  be  entitled  to  receive  from  the  State 
treasury  their  actual  and  necessary  expenses  while 
traveling  in  the  business  of  the  board.  Such  expenses 
shall  be  itemized  and  sworn  to  by  the  person  who  in- 
curred the  expense,  and  allowed  by  the  board. 

Note  by  the  board. — The  law  requires  the  State  to  pay  the 
entire  cost  of  administration  of  the  state  insurance  fund,  leaving 
the  whole  amount  paid  into  such  fund  by  the  employers  and 
employes  to  be  devoted  to  the  payment  of  awards  for  injuries. 

For  convenience  and  the  proper  systemization  of  the  work  of 
the  Board,  the  following  departments  have  been  established: — 

An  Auditing  Department,  which  has  charge  of  all  accounts; 
and  Actuarial  Department,  which  has  charge  of  classifications  and 
rate  making  under  general  rules  adopted  by  the  Board;  a  Clerical 
Department,  with  which  all  claims  for  compensation  are  first  filed 
and  records  of  claims  kept;  an  Inspection  Department,  the  duties 
of  which  will  be  to  make  investigations  of  injuries,  both  before  and 
after  the  awards  of  compensation,  the  jurisdiction  of  the  Board 
being  a  continuing  one;  and,  a  Medical  Department,  consisting  of 
a  Chief  Medical  Examiner,  who  devotes  his  entire  time  to  the  Board, 
and  such  local  medical  examiners  as  it  will  be  found  necessary  to 
appoint.  The  duty  of  the  Chief  Medical  Examiner  will  be  to 
examine  all  physician's  certificates  filed  in  the  claim  department 
and  to  require  examinations  to  be  made  by  local  medical  examin- 
ers in  all  cases  in  which  it  may  seem  advisable. 

Sec.  8.  The  board  shall  adopt  reasonable  and  pro- 
per rules  to  govern  its  procedure,  regulate  and  provide 
for  the  kind  and  character  of  notices,  and  the  services 
thereof,  in  cases  of  accidents  and  injury  to  employes,  the 
nature  and  extent  of  the  proofs  and  evidence  and  the 
method  of  taking  and  furnishing  the  same,  to  establish 
the  right  to  benefits  of  compensation  from  the  State  in- 
surance fund,  hereinafter  provided  for,  the  forms  of  ap- 
plication of  those  claiming  to  be  entitled  to  benefits  or 
compensation  therefrom,  the  method  of  making  investi- 
gations, physical  examinations  and  inspections,  and  pre- 
scribe the  time  within  which  adjudications  and  awards 
shall  be  made. 


4J9  OHIO  ACT.  §  171 

Sec.  9.  Every  employer  shall  furnish  the  board, 
upon  request,  all  information  required  by  it  to  carry  out 
the  purposes  of  this  act.  The  board  or  any  member 
thereof  or  any  person  employed  by  the  board  for  that 
purpose,  shall  have  the  right  to  examine  under  oath  any 
employer  or  officer,  agent  or  employe  thereof. 

Note  by  the  board. — See  note  to  Section  12. 

Sec.  10.  Every  employer  receiving  from  the  board 
any  blank  with  directions  to  fill  the  same,  shall  cause 
the  same  to  be  properly  filled  out  as  to  answer  fully  and 
correctly  all  questions  therein  propounded,  and  if  unable 
to  do  so  shall  give  good  and  sufficient  reasons  for  such 
failure.  Answers  to  such  questions  shall  be  verified 
under  oath  and  returned  to  the  board  within  the  period 
fixed  by  the  board  for  such  return. 

Note  by  the  board.— See  note  to  Section  12. 

Sec.  11.  Each  member  of  the  board,  the  secretary 
and  every  inspector  or  examiner  appointed  by  the  board 
shall,  for  the  purposes  contemplated  by  this  act,  have 
power  to  administer  oaths,  certify  to  official  acts,  take 
depositions,  issue  subpoenas,  compel  the  attendance  of 
witnesses  and  the  production  of  books,  accounts,  papers, 
records,  documents  and  testimony. 

Sec.  12.  In  case  of  disobedience  of  any  person  to 
comply  with  the  order  of  the  board,  or  subpoena  issued 
by  it  or  one  of  its  inspectors,  or  examiners,  or  on  the 
refusal  of  a  witness  to  testify  to  any  matter  regarding 
which  he  may  be  lawfully  interrogated,  or  refuse  to  per- 
mit an  inspection  as  aforesaid,  the  probate  judge  of  the 
county  in  which  the  person  resides,  on  application  of 
any  member  of  the  board,  or  any  inspector  or  examiner 
appointed  by  it,  shall  compel  obedience  by  attachment 
proceedings  as  for  contempt,  as  in  the  case  of  disobe- 
dience of  the  requirements  of  subpoenas  issued  from 
such  court  on  a  refusal  to  testify  therein. 

Note  by  the  board.— Sections  9,  10  and  12  are  construed  to 


§  171      WORKMEN'S  COMPENSATION  AND  INSURANCE.     420 

apply  to  all  employers  coming  within  the  purview  of  the  act, 
whether  subscribers  to  the  State  Insurance  Fund  or  not.  However, 
It  is  not  the  intention  of  the  Board  to  exercise  the  powers  conferred 
on  it  by  these  sections  except  in  extreme  cases.  It  is  earnestly 
desired  that  the  provisions  of  these  sections  be  strictly  observed  by 
employers,  as  such  observance  will  be  of  great  assistance  to  the 
Board  in  its  work. 

Sec.  13.  Each  officer  who  serves  such  subpoenas 
shall  receive  the  same  fees  as  a  sheriff,  and  each  witness 
who  appears,  in  obedience  to  a  subpoena,  before  the 
board  or  an  inspector  or  examiner,  shall  receive  for  his 
attendance  the  fees  and  mileage  provided  for  witnesses 
in  civil  cases  in  courts  of  common  pleas,  which  shall  be 
audited  and  paid  from  the  State  treasury  in  the  same 
manner  as  other  expenses  are  audited  and  paid,  upon 
the  presentation  of  proper  vouchers  approved  by  any 
two  members  of  the  board.  No  witness  subpoenaed  at 
the  instance  of  a  party  other  than  the  board  or  an  in- 
spector shall  be  entitled  to  compensation  from  the  State 
treasury  unless  the  board  shall  certify  that  his  testimony 
was  material  to  the  matter  investigated. 

Sec.  14.  In  an  investigation,  the  board  may  cause 
depositions  of  witnesses  residing  within  or  without  the 
State  to  be  taken  in  the  manner  prescribed  by  the  law 
for  like  depositions  in  civil  actions  in  the  court  of  com- 
mon pleas. 

Sec.  15.  A  transcribed  copy  of  the  evidence  and 
proceedings,  or  any  specific  part  thereof,  or  any  investi- 
gation, by  a  stenographer  appointed  by  the  board,  being 
certified  by  such  stenographer  to  be  a  true  and  correct 
transcript  of  the  testimony  on  the  investigation,  or  of  a 
particular  witness,  or  of  a  specific  part  thereof,  carefully 
compared  by  him  with  his  original  notes,  and  to  be  a 
correct  statement  of  the  evidence  and  proceedings  had 
on  such  investigation  so  purporting  to  be  taken  and  sub- 
scribed, may  be  received  in  evidence  by  the  board  with 
the  same  effect  as  if  such  stenographer  were  present  and 
testified  to  the  facts  so  certified.  A  copy  of  such  tran- 


421  OHIO    ACT.  §171 

script  shall  be  furnished  on  demand  to  any  party  upon 
the  payment  of  the  fee  therefor,  as  provided  for  tran- 
script in  courts  of  common  pleas. 

Sec.  16.  The  board  shall  prepare  and  furnish  blank 
forms,  and  provide  in  its  rules  for  their  distribution  so 
that  the  same  may  be  readily  available,  of  application  for 
benefits  or  compensation  from  the  State  insurance  fund, 
notices  to  employers,  proofs  of  injury  or  death,  of  medi- 
cal attendance,  of  employment  and  wage  earnings,  and 
such  other  blanks  as  may  be  deemed  proper  and  advisa- 
ble, and  it  shall  be  the  duty  of  insured  employers  to  con- 
stantly keep  on  hand  sufficient  supply  of  such  blanks. 

Note  by  the  board. — All  blanks  and  forms  prescribed  by  law  or 
necessary  in  the  judgment  of  the  board  for  the  administration  of 
the  law  have  been  prepared  and  will  be  furnished  free  of  cost  to 
all  employers  and  employes  electing  to  operate  under  the  law. 

Sec.  17.  The  State  liability  board  of  awards  shall 
classify  employments  with  respect  to  their  degree  of 
hazard,  and  determine  the  risks  of  the  different  classes 
and  fix  the  rates  of  premium  of  the  risks  of  the  same, 
based  upon  the  total  pay  roll  and  number  of  employes 
in  each  of  said  classes  of  employment,  sufficiently  large 
to  provide  an  adequate  fund  for  the  compensations  pro- 
vided for  in  this  act,  and  to  create  a  surplus  sufficiently 
large  to  guarantee  a  State  insurance  fund  from  year  to 
year. 

Note  by  the  board. — The  duty  enjoined  upon  the  Board  by  the 
foregoing  section  is  one  of  the  most  important  contained  in  the 
law,  for  the  object  would  seem  to  be  to  require  the  Board  to  so 
classify  employments  and  construct  its  rates  as  to  create  a  fund 
sufficiently  large  during  a  given  period  to  provide  compensation  for 
all  injuries  and  deaths  occurring  in  that  period,  although  payments 
from  the  fund  may  continue  over  a  period  of  six  years.  After  giving 
much  consideration  to  the  subject,  the  Board,  on  February  29th, 
1912,  adopted  a  resolution  prescribing  a  general  rule  of  classifica- 
tion, in  pursuance  of  which  rates  have  been  fixed  for  each  class. 
Every  establishment  or  plant  in  the  state  will  fall  automatically 
into  one  of  the  classes  established  under  this  rule.  The  resolution 
is  as  follows: 


§  171      WORKMEN'S  COMPENSATION  AND  INSURANCE.      422 

"Be  it  Resolved,  that  in  accordance  with  the  provisions  of 
Section  17  of  the  act  entitled,  'An  Act  to  create  a  state  insurance 
fund  for  the  benefit  of  injured,  and  the  dependents  of  killed  em- 
ploye's, and  to  provide  for  the  administration  of  such  fund  by  a 
state  liability  board  of  awards,'  (102  O.  L.,  524),  that  all  employ- 
ments are  hereby  classified  with  respect  to  their  degree  of  hazard 
and  the  risks  of  the  same;  and  that  rates  of  premium  of  the  risks 
of  the  same,  based  upon  the  total  pay  roll  and  number  of  employes 
in  each  of  said  classes  of  employment,  for  each  six  months  period 
be  fixed  in  accordance  with  the  following  tables,  each  of  said  em- 
ployments being  divided  into  five  classes  on  the  following  basis, 
viz.: 

Class  1.  Employments  having  10  or  less  accidents  per  $100,- 
000.00  of  pay  roll,  and  having  no  neath  nor  permanent  disability. 

Class  2.  Employments  having  over  10  and  not  more  than  40 
accidents  per  $100,000.00  of  pay  roll,  and  having  no  death  nor  perma- 
nent total  disability. 

Class  3.  Employments  having  over  40  and  not  more  than  100 
accidents  per  $100,000.00  of  pay  roll,  and  having  no  death  nor  perma- 
nent total  disability. 

Class  4.  Employments  having  more  than  100  and  not  over  200 
accidents  per  $100,000.00  of  pay  roll,  including  one  death  or  perma- 
nent total  disability. 

Class  5.  Employments  having  more  than  200  accidents  per 
$100,000.00  of  pay  roll,  or  more  than  one  death  or  permanent  total 
disability. 

To  each  of  said  classes  add  3.4%  of  the  total  pay  roll  for  each 
additional  death  or  permanent  total  disability  per  each  $100,000.00 
of  pay  roll;  said  classification  and  rates  to  be  effective  until  further 
action  of  the  Board. 

Accidents  referred  to  above  are  the  same  as  injuries  required 
by  law  to  be  reported  to  the  State  Departments." 

Under  the  plan  of  classification  and  rating  established  by  this 
resolution,  employers  in  any  line  of  industry  have  it  in  their  power 
by  so  conducting  their  business  as  to  eleminate  accidents,  to  grad- 
ually reduce  not  only  their  own  individual  rates,  but  the  rates 
applicable  to  the  class  to  which  they  belong,  thus  providing  for 
themselves  and  their  employe's  protection  at  less  cost  and  fulfilling 
one  of  the  purposes  of  such  legislation,  viz.,  reducing  accidents  to 
a  minimum. 

The  author's  construction. — The  intent  of  this  section  is  to  group 
or  classify  employments  into  classes  "with  respect  to  their  degree  of 
hazard,  and  determine  the  risks  of  the  different  classes  and  fix  the 
rates  of  premiums  of  the  same,"  and  it  is  the  opinion  of  the  author 
that  the  language  quoted  means  that  all  employers  engaged  in 
the  same  business  (brewing  for  example)  should  pay  the  same  rate 


423  OHIO   ACT.  §  I/I 

of  premium  on  the  payroll.  Under  the  Washington  act  the  employ- 
ments are  grouped  into  different  classes  according  to  their  individual 
hazard  and  a  uniform  rate  is  imposed.  This  classification  in  intent 
responds  to  the  intent  with  which  the  author  drafted  said  section  17. 
This  section  is  an  exact  copy  of  paragraph  (b),  §  30,  page  LXXV, 
part  I,  Report  of  the  Employers'  Liability  Commission  of  Ohio. 

In  Ohio  all  employers  who  are  engaged  in  the  brewing  business 
should  pay  the  same  rate.  Under  the  construction  placed  upon  this 
section  by  the  State  Liability  Board  of  Awards  five  different  rates 
might  be  made  to  the  brewers  of  Ohio,  depending  upon  individual 
experience  of  the  employer.  This  board  has  in  fact  not  classified 
employment  at  all  but  has  classified  employers  into  five  classes 
according  to  each  employer's  individual  experience. 

The  economic  basis,  in  one  important  particular,  and  there  are 
many  others,  for  putting  all  employers  who  conduct  the  same  kind 
of  business  or  employment  and  all  employments  which  carry  the 
same  hazard  in  the  same  group  as  to  hazard  and  rate  of  premium,  is, 
that  there  is  an  association  of  brewers,  for  example,  and  a  union  of 
brewery  workers  and  that  improvements  in  the  manufacture  of  beer, 
prevention  of  accidents,  improvements  in  the  welfare  of  the  employe's, 
are  best  worked  out  through  the  association  of  the  brewers  and  the 
union  of  workmen. 

Sec.  18.  The  state  liability  board  of  awards  shall 
establish  a  State  insurance  fund  from  premiums  paid 
thereto  by  employers  and  employes  as  herein  provided, 
according  to  the  rates  of  risk  in  the  classes  established 
by  it,  as  herein  provided,  for  the  benefit  of  employes  of 
employers  that  have  paid  the  premium  applicable  to  the 
classes  to  which  they  belong  and  for  the  benefit  of  the 
dependents  of  such  employes,  and  shall  adopt  rules  and 
regulations  with  respect  to  the  collection,  maintenance 
and  disbursement  of  said  fund. 

Note  by  the  board. — In  pursuance  of  authority  conferred  by  the 
above  section,  the  following  plan  has  been  adopted  for  the  collec- 
tion of  premiums : 

Employers  desiring  to  ascertain  the  cost  of  insurance  are  re- 
quired to  file  with  the  Board  an  application  on  a  form  furnished 
by  the  Board,  which  application,  among  other  things,  sets  forth  the 
nature  of  the  business  conducted,  Its  location,  the  number  of  work- 
men or  operatives  employed,  the  kinds  of  employment,  and  the 
estimated  pay  roll  for  the  ensuing  six  months.  This  application  is 
sworn  to  by  the  applicant,  or  if  a  corporation,  by  one  of  its  officers. 
The  application  is  examined  by  the  Auditing  Department,  and  if 
found  to  be  in  correct  form,  is  transferred  to  the  Actuarial  Depart- 
ment, where  the  business  of  the  applicant  is  properly  classified  and 


§  171      WORKMEN'S  COMPENSATION  AND  INSURANCE.      424 

given  the  rate  to  which  such  class  is  entitled  by  application  of  the 
rule  outlined  in  the  resolution  referred  to  in  the  note  to  Section 
17.  The  applicant  is  then  advised  by  mail  as  to  the  classification  of 
his  employment  and  the  rate  per  $100  of  pay  roll.  The  applicant 
then  determines  whether  he  desires  to  elect  to  operate  under  the 
law.  If  so,  he  requests  the  Auditing  Department  to  forward  him  a 
"Pay-In-Order,"  which  is  the  authority  for  the  Treasurer  of  State 
to  accept  the  premium.  The  applicant  then  forwards  the  Pay-in- 
Order,  with  the  amount  of  money  called  for  by  the  same,  directly 
to  the  Treasurer  of  State,  who  receives  the  same,  mails  a  receipt 
to  the  applicant,  and  notifies  our  Auditing  Department.  The  Audit- 
ing Department  then  forwards  to  the  applicant  a  certificate,  certify- 
ing under  seal  of  the  Board  the  fact  that  the  premium  has  been  paid 
into  the  state  Treasury,  and  that  the  applicant  will  be  protected  by 
the  law  for  the  period  of  six  months  from  and  after  the  first  week 
day  following  the  receipt  of  the  premium  by  the  State  Treasurer. 
At  the  same  time  the  applicant  is  forwarded  proper  notices  to  post 
about  his  factory  or  plant,  or  premises  where  his  work  is  carried 
on,  and  also  forms  of  notice  to  be  used  by  his  injured  employes 
who  expect  to  file  their  claims  for  compensation  with  the  Board. 

The  method  of  passing  on  claims  and  making  awards  is  out- 
lined in  the  rules  adopted  by  the  Board,  as  contained  in  the  Appen- 
dix. Disbursement  of  the  fund  will  be  made  upon  orders  signed  by 
at  least  two  members  of  the  State  Liability  Board  of  Awards, 
directed  to  the  Treasurer  of  the  State  of  Ohio,  and  payable  to  the 
injured  person,  or  in  the  event  of  his  death,  to  his  dependents  (See 
Section  19.) 

Sec.  19.  The  treasurer  of  State  shall  be  the  custo- 
dian of  the  State  insurance  fund,  and  all  disbursement 
therefrom  shall  be  paid  by  him,  but  upon  vouchers 
signed  by  any  two  members  of  the  State  liability  board 
of  awards. 

Note  by  the  board. — No  specific  provision  is  made  in  this  sec- 
tion for  the  investment  of  the  State  Insurance  Fund,  or  placing  the 
same  at  interest,  as  is  required  to  be  done  with  state  funds,  but 
State  Treasurer  Creamer  has  followed  the  direction  of  the  law 
respecting  the  deposit  of  state  funds,  and  now  has  the  State  Insur- 
ance Fund  deposited  in  various  banking  institutions,  and  the  same 
is  drawing  interest  on  monthly  balances  in  the  same  manner  as  the 
funds  of  the  state. 

Sec.  20.  The  treasurer  of  state  shall  give  a  separate 
and  additional  bond,  in  such  amount  as  may  be  fixed  by 
the  governor,,  and  with  sureties  to  his  approval,  condi- 
tioned for  the  faithful  performance  of  his  duties  as  custo- 
dian of  the  state  insurance  fund  herein  provided  for. 


425  OHIO   ACT.  §  171 

Section  20-1.  Any  employer  who  employs  five  or 
more  workmen  or  operatives  regularly  in  the  same  busi- 
ness, or  in  or  about  the  same  establishment  who  shall 
pay  into  the  state  insurance  fund  the  premiums  pro- 
vided by  this  act,  shall  not  be  liable  to  respond  in  dam- 
ages at  common  law  or  by  statute,  save  as  hereinafter 
provided,  for  injuries  or  death  of  any  such  employe, 
wherever  occurring,  during  the  period  covered  by  such 
premiums,  provided  the  injured  employe  has  remained 
in  his  service  with  notice  that  his  employer  has  paid 
into  the  state  insurance  fund  the  premiums  provided  by 
this  act;  the  continuation  in  the  service  of  such  em- 
ployer with  such  notice,  shall  be  deemed  a  waiver  by 
the  employe  of  his  right  of  action  as  aforesaid. 

Each  employer  paying  the  premiums  provided  by 
this  act  into  the  state  insurance  fund  shall  post  in  con- 
spicuous places,  about  his  place  or  places  of  business, 
typewritten  or  printed  notices  stating  the  fact  that  he 
has  made  such  payment;  and  the  same,  when  so  posted, 
shall  constitute  sufficient  notice  to  his  employes  of  the 
fact  that  he  has  made  such  payment;  and  of  any  subse- 
quent payments  he  may  make  after  such  notices  have 
been  posted. 

Note  by  the  board. — (A)  This  section  and  succeeding  sections 
(See  Sections  20-2,  21-1  and  21-2)  have  the  effect  of  dividing  em- 
ployers into  two  general  classes,  viz.: — 

1.  Those  who  employ  less  than  five  workmen  or  operatives 
regularly  in  the  same  business. 

2.    Those  who  employ  more  than  five  workmen  or  operatives 
regularly  in  the  same  business. 

In  other  words,  this  act  operates  only  on  those  employers 
employing  five  or  more  workmen  or  operatives,  and  those  who 
employ  a  less  number  are  subject  to  the  liability  law  in  force  at  the 
time  of  the  going  into  effect  of  this  act. 

Under  this  act  the  employers  of  the  second  class  above  enum- 
erated may,  by  choice  or  by  willful  act  or  negligence,  co.me  within 
any  one  of  three  classes: — 

1.  Employers  who  employ  five  or  more  workmen  or  operatives 
regularly  in  the  same  business  who  pay  into  the  state  insurance 
fund  the  premiums  prescribed  by  the  State  Liability  Board  of 
Awards  and  who  observe  the  provisions  of  municipal  and  state  laws 


§171      WORKMEN'S  COMPENSATION  AND  INSURANCE.      426 

relative  to  the  protection  of  the  life  or  safety  of  employe's,  and  who 
do  not  willfully  injure  any  employe  or  employes.  Such  employers 
are  not  liable  to  respond  in  damages  by  civil  action  for  any  injury 
occurring  to  any  employs  in  the  course  of  his  employment,  but  the 
employ^  must  resort  wholly  to  the  state  insurance  fund. 

2.  Employers  who  employ  five  or  more  employes  or  operatives 
regularly  in  the  same  business,  who  do  not  elect  to  pay  the  premi- 
ums provided  for  under  this  act.    The  employed  of  such  employers, 
in  case  of  injury,  have  no  claim  upon  the  state  insurance  fund, 
their  only  recourse  being  a  civil  action  for  damages  brought  in  a 
court  of  proper  jurisdiction.    In  such  actions,  the  employers  are  not 
permitted  to  avail  themselves  of  the  common  law  defenses  enumer- 
ated in  this  act. 

3.  Employers  who  employ  more  than  five  workmen  or  opera- 
tives regularly  in  the  same  business  and  who  pay  into  the  state 
insurance  fund  the  premiums  fixed  by  the  State  Liability  Board  of 
Awards,  but  who  willfully  inflict  injury  upon  their  employe's  or  who 
disregard   municipal   or   state   regulations   for   the   safety  of  their 
employes.     The   employes   of   such   employers,   in   case  of   injury, 
have  the  option  of  either  maintaining  a  civil  action  for  damages,  or 
filing  a  claim  with  the  State  Liability  Board  of  Awards  for  an  award 
from  the  state  insurance  fund.    Having  once  exercised  their  option, 
however,  their  decision  is  final,  and  they  must  abide  by  the  result. 
(See  Sections  21-1  and  21-2.) 

(B)  The   words   "workmen   or   operatives"   are   construed   to 
include  all  employes  employed  in  the  same  business,  or  in  or  about 
the  same  establishment,  to  whom  compensation  of  any  nature  is 
paid,  excepting  the  officers  of  a  corporation,  as  such,  and  persons 
wholly  engaged  as  traveling  salesmen.     (Opinion  of  Attorney-Gen- 
eral Hogan,  April      ,  1912).    The  only  part  of  the  total  pay  roll  to 
be  excluded  in  the  calculation  of  the  premium  is  the  compensation 
paid  to  the  officers  of  a  corporation,  as  such,  and  traveling  salesmen. 
All  others  are  included.    Of  course,  if  an  officer  of  a  corporation  is 
also  employed  as  a  workman  or  operative  in  any  capacity  in  the 
business,  other  than  traveling  salesman,  his  pay  roll,  as  such  work- 
man or  operative,  should  be  included  also. 

(C)  A  liberal  construction  is  given  the  word  "regularly,"  as 
used  in  the  above  section.    It  is  not  construed  to  mean  continuously. 
If  an  employer  employs  five  or  more  workmen  or  operatives  in  the 
business  which  he  is  conducting  during  such  portions  of  the  year  as 
conditions  permit  of  the  carrying  on  of  the  business  in  which  he  is 
engaged,  he  and  his  employe's  are  subject  to  the  provisions  of  the 
law.     (Opinion  of  Attorney  General  of  March  9th,  1912.) 

(D)  The  words  "wherever  occurring,"  as  used  in  the  above 
section,  and  "wheresoever  such  injury  has  occurred,"  as  used  in 
Section  21,  should  be  construed  together  and  considered  in  connec- 


OHIO   ACT.  §  17! 

tion  with  the  expression  "employes  in  this  state,"  as  used  in  Section 
20-2,  so  that  the  employe"  of  an  Ohio  employer  whose  contract  of 
employment  was  made  in  Ohio  is  entitled  to  participate  in  the 
State  Insurance  Fund  to  which  his  employer  has  contributed,  in  the 
event  of  his  injury  in  the  course  of  his  employment  anywhere  within 
or  without  the  territorial  limits  of  Ohio;  and  the  employer  is 
equally  protected  from  action  at  law  by  his  injured  employe  wheth- 
er the  injury  occurred  within  or  without  the  territorial  limits  of 
Ohio.  (Opinion  of  Attorney-General  Hogan,  January  4,  1912.) 

(E)  The  method  to  be  followed  by  the  employer  in  making  his 
election  to  pay  the  premiums  provided  by  this  act  Into  the  State 
Insurance  Fund  has  been  outlined  elsewhere.     (See  note  to  Section 
18.) 

(F)  The  election  of  the  employe"  is  made  by  his  remaining  in 
the  service  of  his  employer  with  notice  that  his  employer  has  paid 
into  the  State  Insurance  Fund  the  premiums  provided  by  law,  and 
his  continuation  in  the  service  of  his  employer  after  such  notice 
deprives  him  of  the  right  to  maintain  an  action  in  court,  except  in 
the  special  cases  defined  in  Section  21-2.    The  posting  of  the  notices 
prescribed  in  this  section  by  the  employer  shall  constitute  sufficient 
notice  to  the  employe  of  the  fact  that  such  payment  has  been  made, 
and  the  continuance  of  the  employe"   in  the  service  thereafter,  in 
effect  constitutes  an  implied  contract  between  employer  and  em- 
ploye to  the  effect  that  the  employe"  will  resort  to  the  State  Insur- 
ance Fund  only  for  compensation  in  case  of  injury.     (Opinion  of 
Attorney-General  Hogan,  April  4,  1912.) 

(G)  There  is  no  distinction  between  "minors"  and  "adults"  in 
the  manner  of  election.  All  employe's  elect  in  the  same  manner 
regardless  of  whether  they  are  minors  or  adults,  and  minors  are 
dealt  with  by  the  Board  in  all  respects  in  the  same  manner  as 
adults. 

Sec.  20-2.  For  the  purpose  of  creating  such  state 
insurance  fund,  each  employer  who  employs  five  or 
more  workmen  or  operatives  regularly  in  the  same  busi- 
ness, or  in  or  about  the  same  establishment,  and  his  em- 
ployes in  this  state,  having  elected  to  accept  the  provi- 
sions of  this  act,  shall  pay,  on  or  before  January  1,  1912, 
and  semi-annually  thereafter,  the  premiums  of  liability 
risk  in  the  classes  of  employment  as  may  be  determined 
and  published  by  the  state  liability  board  of  awards.  The 
said  employers  for  themselves  and  their  employes  shall 
make  such  payments  to  the  state  treasurer  of  Ohio,  who 
shall  receive  and  place  the  same  to  the  credit  of  such 


§  171      WORKMEN'S  COMPENSATION  AND  INSURANCE.      428 

state  insurance  fund.  The  premiums  provided  for  in 
this  act  shall  be  paid  by  the  employer  and  employes  in 
the  following  proportions,  to-wit:  Ninety  per  cent,  of 
the  premium  shall  be  paid  by  the  employer  and  ten  per 
cent,  by  the  employes.  Each  employer  is  authorized  to 
deduct  from  the  pay  roll  of  his  employes  ten  per  cent,  of 
the  said  premiums  for  any  premium  period  in  proportion 
to  the  pay  roll  of  such  employes;  no  deduction  shall  be 
made  except  for  that  portion  of  the  premium  period 
antedating  such  pay  roll.  Each  employer  shall  give  a 
receipt  to  each  employe  showing  the  amount  which  has 
been  deducted  and  paid  into  the  state  insurance  fund. 

Note  by  the  board. — (A)  The  plan  devised  by  this  law  contem- 
plates that  the  employer  will  have  paid  into  the  State  Insurance 
Fund  on  or  before  January  1,  1912,  the  amount  prescribed  by  the 
Board,  and  thereafter,  within  the  period  of  time  covered  by  such 
payment,  all  accidents  occurring  to  employes  of  such  employers  as 
have  contributed  to  such  fund,  except  as  provided  by  Section  21-2, 
shall  be  compensated  out  of  such  fund  exclusively.  The  amount 
paid  by  each  employer  will  be  determined  by  the  classification  of 
the  industry  in  which  he  is  engaged,  the  number  of  men  employed, 
the  estimated  pay  roll  for  the  succeeding  six  months  and  the  rate 
fixed  by  the  Board  for  such  particular  class;  and  the  employer  is 
then  given  the  right  to  deduct  from  the  wages  of  his  employes  such 
weekly  or  monthly  amounts  as  in  the  six  months  period  will 
aggregate  10%  of  the  amount  so  paid  by  the  employer  into  the  State 
Insurance  Fund.  Receipts  and  forms  will  be  furnished  employers 
by  the  Board. 

(B)  The  date,  January  1,  1912,  fixed  in  the  foregoing  section 
as  the  time  for  the  going  into  effect  of  the  act,  is  directory  and  not 
mandatory.     Therefore,  the  act  did  not  go  into  full  operation  until 
the  rates   of  insurance   were  "determined  and   published"   by  the 
Board,  which  was  done  on  February  29th,  1912.    (See  note  to  Section 
17.)     As  no  employer  could  have  availed  himself  of  the  provisions 
of  the  law  until  March  1,  1912,  it  is  clear  that  he  could  not  be 
deprived  of  the  common-law  defenses  in  any  action  brought  by  an 
employ6  for  an  injury  occurring  at  any  time  prior  to  that  date. 
(Opinion  of  Attorney-General  Hogan,  January  8,  1912.) 

(C)  This  section  provides  that  the  employer  who  has  elected 
to   accept  the  provisions  of  this   act  shall   pay  the   premiums   of 
liability  risk  in  the  classes  of  employment  as  may  be  "determined 
and    published"    by    the    State    Liability    Board    of   Awards.      The 
method  of  publication  is  not  prescribed  by  the  law.     In  an  opinion 


429  OHIO   ACT.  §  171 

rendered  to  the  Board  by  Attorney-General  Hogan  on  March  6th, 
1912,  it  is  held  that  it  is  not  necessary  to  make  such  publication  in 
a  newspaper,  and  that  sufficient  publication  has*  been  made  if  it  is 
made  known  through  the  press  that  the  Board  has  established  its 
rates,  and  that  the  same  may  be  had  upon  application.  The 
Attorney-General,  in  his  opinion,  also  suggests  that  it  would  be  a 
proper  means  of  publication  to  have  the  classifications  and  rates 
published  in  a  rate  book  for  distribution,  and  this  is  now  being 
done. 

(D)  Frequent  inquiry  is  made  of  the  Board  as  to  whether  the 
employer  is  required  by  law  to  collect  from  his  employe's  ten  per 
cent,  of  the  premium  paid  by  him  into  the  State  Insurance  Fund. 
The  employer  is  given  the  right  to  collect  the  ten  per  cent,  from  his 
employe's,  but  may  waive  that  right  if  he  so  desires,  as  the  collec- 
tion of  the  ten  per  cent,  is  no  part  of  the  election  of  the  employs  to 
accept  the  provisions  of  the  act.     The  employe's  election  is  made 
irrevocably  when  he  continues  in  his  employment  after  the  posting 
of  the  notices  required  in  Section  20-1. 

(E)  The  words  "employe's  in  this  state,"  as  used  in  this  sec- 
tion, should  be  construed  to  mean  employe's   whose  contracts  of 
service  are  made  in  this  state.     If  the  contract  of  service  is  made 
in  Ohio,  it  matters  not  where  the  injury  has  occurred,  providing  it 
was  sustained   in  the  course  of  employment.      (See   Section  20-1, 
Note  (D).) 

(F)  The  inquiry  is  frequently  made  as  to  how  an  employer 
who  once  elects  to  become  a  subscriber  to  the  State  Insurance  Fund 
shall  proceed  in  the  event  he  desires  to  no  longer  contribute.    The 
first  contribution  made  to  the  fund  protects  the  employer  and  pro- 
vides compensation  for  his  employes  for  the  period  of  six  months 
from  the  day  following  the  date  of  the  contribution.     Protection 
ceases  at  the  end  of  the  six-months  period,  and  unless  the  employer 
continues  to  make  his  payments,  he  is  automatically  dropped.     In 
other  words,  the  employer  goes  out  of  the  protection  of  the  law  by 
simply  failing  to  make  his  payments. 

(G)  The  Board  is  frequently  asked  whether  a  principal  who 
sub-lets  work  to  an  independent  contractor  should  subscribe  to  the 
fund  in  order  to  be  protected  from  injuries  occurring  to  the  em- 
ploye's of  the  independent  contractor.    The  subject  of  "independent 
contractor"  is  in  itself  a  branch  of  the  law  which  could  be  made  the 
subject  of  an  extensive  treatise,  and  we  shall  content  ourselves  by 
stating   that   the   Workmen's   Compensation   Law   has   in   no   wise 
changed  the  law  as  to  independent  contractors.    In  other  words,  if 
the  principal  would,  under  the  general  law  governing  this  subject, 
be  liable  for  injuries  resulting  to  the  employes  of  independent  con- 
tractors, it  would  be  necessary  for  him  to  subscribe  to  the  State 
Insurance  Fund  in  order  to  be  protected;    otherwise,  not.    A  clear 


§  1 7i      WORKMEN'S  COMPENSATION  AND  INSURANCE.     430 

case  of  the  non-liability  of  the  principal  would  be  where  the  em- 
ployer employs  workmen  who  do  what  is  generally  known  as  "piece 
work,"  the  employes  working  in  shops  or  rooms  which  they  provide 
for  themselves,  or  at  their  homes,  and  not  under  the  supervision  or 
control  in  any  way  of  the  employer.  Neither  such  employes  who 
contract  directly  with  the  principal  to  do  such  piece  work,  nor  any 
persons  they  might  employ  to  assist  them  would  come  under  the 
terms  of  the  act,  and  neither  would  have  a  claim  on  the  principal 
in  case  of  injury.  (Opinion  of  Attorney-General  Hogan,  March  8, 
1912.)  A  different  rule  would  apply,  however,  in  cases  where  the 
principal  furnishes  the  place  to  work,  the  machinery  and  tools  with 
which  to  work  and  the  materials  from  which  the  finished  product  is 
made,  and  retains  a  general  supervision  over  the  conduct  of  the 
workmen.  In  such  instance,  we  believe  that  the  principal  owes  a 
duty  to  furnish  a  safe  place  in  which  to  work,  safe  machinery,  etc., 
and  that  he  would  be  liable  for  any  injury  occurring  to  the  em- 
ployes of  the  independent  contractor  occasioned  by  negligence  of 
the  principal  or  any  of  his  officers,  agents  or  employes,  either  in 
furnishing  a  safe  place  in  which  to  work  or  in  furnishing  proper 
machinery,  tools,  etc.,  and  so  in  order  to  be  protected  should  be  a 
subscriber  to  the  fund. 

(H)  The  manner  of  the  election  of  the  employs  has  already 
been  described.  (See  note  (F)  under  Section  20-1.) 

(I)  The  ten  per  cent,  which  the  employer  is  authorized  by 
this  section  to  collect  from  his  employes  is  not  ten  per  cent,  of  the 
employes'  wages,  but  ten  per  cent,  of  the  amount  of  the  premium 
paid  by  the  employer.  This  seems  to  be  so  clear  as  to  require  no 
explanation,  but  we  find  many  persons  have  the  erroneous  opinion 
that  it  is  ten  per  cent,  of  the  employe's  wages  that  the  employer  is 
entitled  to  retain.  To  illustrate,  if  the  rate  of  premium  charged  the 
employer  is  $1.00  per  $100.00  of  wages  paid,  the  employer  would 
have  the  right  to  collect  from  his  employes  10  cents  for  each  $1.00 
of  premium  paid,  i.  e.,  10  cents  for  each  $100.00  of  wages  paid  the 
employes  which  would  be  one-tenth  of  one  per  cent,  of  the  employes' 
wages,  or  for  an  employe  earning  $10.00  per  week,  the  amount  to  be 
deducted  from  his  wages  would  be  just  one  cent  per  week. 

Sec.  21.  The  state  liability  board  of  awards  shall 
disburse  the  state  insurance  fund  to  such  employes  of 
employers  as  have  paid  into  said  fund  the  premiums  ap- 
plicable to  the  classes  to  which  they  belong,  that  have 
been  injured  in  the  course  of  their  employment,  where- 
soever such  injury  has  occurred,  and  which  have  not 
been  purposely  self-inflicted,  or  to  their  dependents  in 
case  death  has  ensued. 


43 1  OHIO   ACT.  §  17! 

Note  by  the  board.— By  the  provisions  of  this  section,  the  State 
Liability  Board  of  Awards  is  required  to  compensate  Injured  em- 
ploye's for  all  injuries  received  by  them  in  the  course  of  their  em- 
ployment and  wheresoever  such  injuries  have  occurred,  or  their 
dependents  in  case  death  has  ensued,  excepting  such  injuries  as 
may  have  been  purposely  self-inflicted.  The  question  of  negligence, 
or  whether  the  injury  was  occasioned  by  the  fault  of  the  employer, 
or  any  of  his  foremen  or  by  any  fellow  employe1,  or  as  the  result  of 
defective  machinery,  etc.,  will  not  be  considered  by  the  Board.  It  is 
simply  required  to  determine  whether  in  fact  any  injury  was  sus- 
tained, and  if  so,  whether  it  was  incurred  in  the  course  of  employ- 
ment. 

Sec.  21-1.  All  employers  who  employ  five  or  more 
workmen  or  operatives  regularly  in  the  same  business, 
or  in  or  about  the  same  establishment,  who  shall  not  pay 
into  the  state  insurance  fund  the  premiums  provided  by 
this  act,  shall  be  liable  to  their  employes  for  damages 
suffered  by  reason  of  personal  injuries  sustained  in  the 
course  of  employment  caused  by  the  wrongful  act,  ne- 
glect or  default  of  the  employer,  or  any  of  the  employ- 
er's officers,  agents  or  employes,  and  also  to  the  personal 
representatives  of  such  employes  where  death  results 
from  such  injuries  and  in  such  action  the  defendant  shall 
not  avail  himself  or  itself  of  the  following  common-law 
defenses: 

The  defense  of  the  fellow-servant  rule,  the  defense  of 
the  assumption  of  risk,  or  the  defense  of  contributory 
negligence. 

Note  by  the  board. — See  note  to  Section  20-1. 

Under  this  section,  employers  who  do  not  contribute  to  the 
State  Insurance  Fund  are  deprived  of  the  common-law  defenses, 
and  are  liable  to  respond  in  damages  for  death  or  injury  caused  by 
the  wrongful  act,  neglect  or  default  of  the  employer;  or  any  of  the 
employer's  "officers,  agents  or  employes."  The  words  "wrongful 
act,  neglect  or  default,"  as  used  in  this  section,  include  all  degrees 
of  negligence,  including  what  is  sometimes  referred  to  as  "wilful 
negligence,"  but  the  term  "wrongful  act"  is  not  used  in  the  same 
sense  as  the  term  "wilful  act"  in  Section  21-2.  (Opinion  of  Attor- 
ney-General Hogan,  April  4,  1912.)  The  only  defense  available  to 
the  employer  under  this  section,  where  the  question  of  injury  itself 


§  171      WORKMEN'S  COMPENSATION  AND  INSURANCE.      432 

Is  undisputed,  Is  that  the  injury  was  occasioned  solely  by  the  negli- 
gence of  the  injured  employe. 

Sec.  21-2.  But  where  a  personal  injury  is  suffered 
by  an  employe,  or  when  death  results  to  an  employe 
from  personal  injuries  while  in  the  employ  of  an  em- 
ployer in  the  course  of  employment,  and  such  employer 
has  paid  into  the  state  insurance  fund  the  premium  pro- 
vided for  in  this  act,  and  in  case  such  injury  has  arisen 
from  the  wilful  act  of  such  employer  or  any  of  such  em- 
ployer's officers  or  agents  or  from  the  failure  of  such 
employer,  or  any  of  such  employer's  officers  or  agents, 
to  comply  with  any  municipal  ordinance  or  lawful  order 
of  any  duly  authorized  officer,  or  any  statute  for  the  pro- 
tection of  the  life  or  safety  of  employes,  then  in  such 
event,  nothing  in  this  act  contained  shall  affect  the  civil 
liability  of  such  employer,  but  such  injured  employe,  or 
his  legal  representative  in  case  death  results  from  the 
injury,  may,  at  his  option,  either  claim  compensation 
under  this  act  or  institute  proceedings  in  the  courts  for 
his  damage  on  account  of  such  injury,  and  such  employer 
shall  not  be  liable  for  any  injury  to  any  employe,  or  to 
his  legal  representative  in  case  death  results,  except  as 
provided  in  this  act. 

Every  employe,  or  legal  representative  in  case  death 
results,  who  makes  application  for  an  award  from  the 
state  liability  board  of  awards,  waives  his  right  to 
exercise  his  option  to  institute  proceedings  in  any  court. 
Every  employe,  or  his  legal  representative  in  case  death 
results,  who  exercises  his  option  to  institute  proceedings 
in  court  as  provided  in  section  21-2,  waives  his  right  to 
any  award;  except  as  provided  in  section  36  of  this  act. 

Note  by  the  board.— See  notes  to  Sections  20-1,  20-2  and  21-1. 

(A)  The  term  "wilful  act,"  as  employed  in  the  above  section, 
is  not  synonymous  with  the  expression  "wilful  neglect,"  or  "wilful 
negligence,"  nor  is  it  used  in  the  same  sense  as  the  expression 
"wrongful  act,"  as  used  in  Section  21-1.  The  term  "wilful  act" 
must  necessarily  mean  something  intentionally  done,  not  something 
omitted  to  be  done,  and  therefore,  has  reference  to  an  act  deliber- 


433  OHIO  ACT.  §  171 

ately  and  intentionally  done,  which  is  a  direct  and  proximate  cause 
of  injury  to  the  employe.  (Opinion  of  Attorney-General  Hogan, 
April  4,  1912.) 

(B)  This  section  designates  certain  injuries  which  constitute 
an  exception  to  the  provision  of  Section  20-1,  to  the  effect  that  the 
employer  who  has  paid  into  the  State  Insurance  Fund  the  premiums 
of  insurance  fixed  by  the  Board  shall  not  be  liable  to  respond  to 
damages  at  common-law  or  by  statute  for  injuries  or  death  of  any 
of  his  employe's.     There  were  two  reasons  for  including  the  provi- 
sions of  this  section  in  the  act.    The  first  was  that  every  person  is 
given  the  right  by  the  constitution  of  the  State  of  Ohio  to  enter  the 
courts  and  maintain  a  civil  action  against  any  other  person  who  has 
done  him  an  injury  in  his  lands,  goods,  person  or  reputation.    There- 
fore, an  employ^  injured  by  the  wilful  act  of  his  employer,  or  his 
employer's  officer  or  agent,  could  not  be  deprived  of  his  right  to  sue 
by  an  act  of  the  legislature,  and  the  whole  law  would  have  probably 
been    rendered    unconstitutional    had    not   the    provisions    of   this 
section,  with  reference  to  the  "wilful  act,"  been  inserted. 

The  other  reason  was  one  founded  upon  public  policy.  The 
state  having  passed  many  statutes  requiring  the  safeguarding  of 
machinery,  etc.,  for  the  protection  of  the  life  and  safety  of  employes, 
it  would  be  an  unwise  policy  for  the  state  to  enact  any  law  by 
which  it  would  either  itself  absolutely  insure  employers  against  the 
consequences  of  the  violation  of  such  laws,  or  permit  any  one  else 
to  effect  such  insurance.  However,  by  giving  the  injured  employe 
the  option  of  resorting  to  the  State  Insurance  Fund  in  the  class  of 
injuries  mentioned  in  Section  21-2,  thus  giving  to  the  injured 
employe,  or  the  dependents  of  a  killed  employe,  an  opportunity  to 
obtain  compensation,  very  soon  after  the  injury,  and  without  trouble 
or  expense,  the  state  has  gone  a  long  way  toward  covering  all  of 
such  injuries  by  its  plan  of  state  insurance.  As  a  matter  of  fact,  it 
is  expected  that  practically  all  injured  employes,  who  would  under 
this  section  have  the  option  of  suing  in  court,  will  resort  to  the 
State  Insurance  Fund  instead,  so  that  the  state  plan  of  insurance  is 
much  more  complete  than  any  plan  of  insurance  which  can  be 
lawfully  written  by  the  insurance  companies. 

(C)  Special  attention  is  called  to  the  last  paragraph  of  the 
above  section.    While  the  provisions  of  this  paragraph  seem  to  be 
clear  and  should  require  no  explanation,  an  impression  has  been, 
created  in  the  minds  of  many  persons,  to  the  effect  that  the  injured 
employ^  may  file  his  claim  with  the  State  Liability  Board  of  Awards, 
and  if  dissatisfied  with  the  award,  may  refuse  to  accept  same,  and 
then  enter  suit  in  court  against  his  employer.    This  impression  la 
entirely  erroneous,  as  it  is  clearly  provided  that  any  employe  "who 
makes  application  for  an  award"  thereby  waives  any  right  he  may 
have  had  to  sue  in  court,  so  that  the  mere  filing  of  the  application 

2g— BOYD  w  c 


§  171      WORKMEN'S  COMPENSATION  AND  INSURANCE.      434 

is  a  bar  to  any  proceedings  in  court.  On  the  other  hand,  the  mere 
filing  of  a  suit  in  court  against  the  employer  bars  the  injured 
employe"  from  thereafter  resorting  to  the  State  Insurance  Fund  for 
compensation.  (See  note  to  Section  36;  also  reference  to  opinion 
of  Attorney-General  Hogan  of  April  4,  1912,  in  prefatory  note,  under 
the  head  of  "State  Insurance  Preferable  to  So-called  Employers' 
Liability  Insurance".) 

(D)  The  statutes  containing  provisions  for  the  protection  of 
the  life  and  safety  of  employe's,  and  also  statutes  regulating  the 
employment  of  minors  and  females,  etc.,  are  printed  for  free  dis- 
tribution and  may  be  had  upon  application  to  Hon.  Thomas  P. 
Kearns,  Chief  Inspector  of  Workshops  and  Factories,  Columbus, 
Ohio. 

Sec.  22.  (There  is  no  section  in  the  act  correspond- 
ing to  this  number.) 

Sec.  23.  The  board  shall  disburse  and  pay  from  the 
fund  for  such  injury,  to  such  employes,  such  amounts  for 
medical,  nurse  and  hospital  services  and  medicines,  as  it 
may  deem  proper,  not,  however,  in  any  case,  to  exceed 
the  sum  of  two  hundred  dollars,  in  addition  to  such 
award  to  such  employe. 

Note  by  the  board. — While  it  is  the  purpose  of  the  law  to  pay 
for  all  medical,  nurse  and  hospital  services  and  medicines  reason- 
ably required  by  the  injured  employe,  the  only  limitation  being  that 
this  shall  not  exceed  $200.00,  the  object  of  the  Board  will  be  to  con- 
fine such  payments  to  reasonable  and  necessary  expenditures.  This 
will  be  done  by  the  Chief  Medical  Examiner,  who  has  prepared  a 
medical  and  hospital  fee  bill  containing  a  schedule  of  charges  which 
will  be  considered  reasonable  by  the  Board,  and  in  this  way,  the 
Board  expects  to  effectually  prevent  payment  of  extravagant  claims 
for  such  services. 

Sec.  24.  In  case  death  ensues  from  the  injury  rea- 
sonable funeral  expenses,  not  to  exceed  one  hundred 
and  fifty  dollars,  shall  be  paid  from  the  fund,  in  addition 
to  such  award  to  such  employe. 

Sec.  25.  No  benefit  shall  be  allowed  for  the  first 
week  after  the  injury  is  received,  except  the  disburse- 
ment provided  for  in  the  next  two  preceding  sections. 

Note  by  the  board. — The  injured  employe  bears  the  loss  occa- 
sioned by  his  inability  to  work  for  the  first  week  after  receiving  an 


435  OHIO  ACT.  §  171 

injury.    The  law  thus  adopts  a  rule  which  prevails  in  all  benevolent 
orders  and  benefit  societies. 

Sec.  26.  In  case  of  temporary  or  partial  disability, 
the  employe  shall  receive  sixty-six  and  two-thirds  per 
cent,  of  the  impairment  of  his  earning  capacity  during 
the  continuance  thereof,  not  to  exceed  a  maximum  of 
twelve  dollars  per  week,  and  not  less  than  a  minimum 
of  five  dollars  per  week,  if  the  employe's  wages  were 
less  than  five  dollars  per  week,  then  he  shall  receive  his 
full  wages ;  but  not  to  continue  for  more  than  six  years 
from  the  date  of  the  injury,  nor  to  exceed  three  thou- 
sand four  hundred  dollars  in  amount  from  that  injury. 

Jfote  by  the  board. — This  section  provides  compensation  for  the 
injuries  wholly  disabling  employes  for  a  temporary  period,  and  also 
for  partial  disability  for  a  temporary  period,  the  award  to  be  deter- 
mined by  the  impairment  of  the  earning  capacity  of  the  employe1,  and 
not  altogether  by  the  nature  of  the  injury  itself.  There  is  no  spe- 
cific provision  in  the  law  for  injuries  permanent  in  character  result- 
ing in  partial  disability,  such  as  the  loss  of  an  eye  or  a  member. 
Compensation  for  such  injuries  are  made  under  this  section.  The 
"average  weekly  wage"  is  taken  as  the  basis  for  awards  in  all 
cases  of  injury.  (See  Sections  31  and  32  and  notes.) 

Sec.  27.  In  case  of  permanent  total  disability  the 
award  shall  be  662-3%  of  the  average  weekly  wage,  and 
shall  continue  until  the  death  of  such  person  so  totally 
disabled,  but  not  to  exceed  a  maximum  of  twelve  dollars 
per  week,  and  not  less  than  a  minimum  of  five  dollar  per 
week ;  if  the  employe's  wages  were  less  than  five  dollars 
per  week,  then  he  shall  receive  his  full  wages. 

Note  by  the  board. — This  section  provides  for  compensation  for 
permanent  total  disability  only.  (See  Sections  31  and  32  and  notes). 

Sec.  28.  In  case  the  injury  causes  death  within  the 
period  of  two  years  the  benefits  shall  be  in  the  amounts 
and  to  the  persons  following: 

1.  If  there  be   no  dependents,  the   disbursements 
from  the  insurance  fund  shall  be  limited  to  the  expense 
provided  for  in  sections  23  and  24. 

2.  If  there   are   wholly  dependent   persons   at   the 


§  171      WORKMEN'S  COMPENSATION  AND  INSURANCE.      436 

time  of  the  death,  the  payment  shall  be  sixty-six  and 
two-thirds  per  cent,  of  the  average  weekly  wage  and  to 
continue  for  the  remainder  of  the  period  between  the 
date  of  the  death  and  six  years  after  the  date  of  the  in- 
jury, and  not  to  amount  to  more  than  a  maximum  of 
thirty-four  hundred  dollars,  nor  less  than  a  minimum  of 
one  thousand  five  hundred  dollars. 

3.  If  there  are  partly  dependent  persons  at  the  time 
of  the  death,  the  payment  shall  be  sixty-six  and  two- 
thirds  per  cent,  of  the  average  weekly  wage  and  to  con- 
tinue for  all  or  such  portion  of  the  period  of  six  years 
after  the  date  of  the  injury  as  the  board  in  each  case 
may  determine,  and  not  to  amount  to  more  than  a  maxi- 
mum of  thirty-four  hundred  dollars. 

Note  by  the  board. — This  section  provides  for  awards  to  be 
made  in  case  of  death  by  injury.  It  very  wisely  makes  a  distinc- 
tion between  killed  employe's,  leaving  no  dependents,  and  those  who 
leave  dependents  surviving,  and  it  also  makes  a  distinction  between 
those  wholly  dependent  and  those  partly  dependent  upon  the 
deceased  employe,  and  gives  the  Board  a  wide  discretion  in  deter- 
mining as  a  matter  of  fact  whether  there  are  dependents,  and  if  so, 
whether  they  are  wholly  or  partly  dependent. 

Sec.  29.  The  benefits,  in  case  of  death,  shall  be  paid 
to  such  one  or  more  of  the  dependents  of  the  decedent, 
for  the  benefit  of  all  the  dependents,  as  may  be  deter- 
mined by  the  board,  which  may  apportion  the  benefits 
among  the  dependents  in  such  manner  as  it  may  deem 
just  and  equitable.  Payment  to  a  dependent  subsequent 
in  right  may  be  made,  if  the  board  deem  proper,  and 
shall  operate  to  discharge  all  other  claims  therefor. 

Note  by  the  board. — This  provision  will,  in  many  instances, 
obviate  the  necessity  of  the  expense  attendant  upon  the  appoint- 
ment of  guardians  of  infants  and  other  persons  under  legal  disabil- 
ity, and  of  administrators. 

Sec.  30.  The  dependent  or  person  to  whom  benefits 
are  paid  shall  apply  the  same  to  the  use  of  the  several 
beneficiaries  thereof  according  to  their  respective  claims 


437  OHI°  ACT-  §  171 

upon  the  decedent  for  support,  in  compliance  with  the 
finding  and  direction  of  the  board. 

Sec.  31.  The  average  weekly  wage  of  the  injured 
person  at  the  time  of  the  injury  shall  be  taken  as  the 
basis  upon  which  to  compute  the  benefits. 

Note  by  the  board. — "My  opinion  is  that  Section  31  is  a  general 
section  providing  the  basis  upon  which  to  compute  the  benefits 
payable  on  account  of  any  injury  to  an  employe,  whether  death 
results  from  such  injury  or  not,  and  that  by  'earning  capacity'  is 
meant  the  'average  weekly  wage',  except  in  such  cases  as  are  pro- 
vided for  by  Section  32  of  the  act,  where  the  injured  employe  was 
of  such  age  and  experience  that  under  natural  conditions  his  wages 
would  be  expected  to  increase.  Where  these  conditions  exist,  then, 
and  then  only,  is  it  important  for  your  Board  to  ascertain  what  the 
earning  capacity  of  such  employe1  is."  (Opinion  of  Attorney-Gen- 
eral Hogan,  January  11,  1912.) 

See  Sections  26  and  32  and  notes. 

Sec.  32.  If  it  is  established  that  the  injured  employe 
was  of  such  age  and  experience  when  injured  as  that 
under  natural  conditions  his  wages  would  be  expected 
to  increase,  the  fact  may  be  considered  in  arriving  at 
his  average  weekly  wage. 

Note  by  the  board. — "The  only  way  by  which  you  can  arrive  at 
the  'average  weekly  wage'  referred  to  in  Section  32,  would  be  to 
ascertain  what  the  weekly  wages  of  the  employs  were  at  the  time 
of  the  injury,  his  physical  condition,  the  nature  of  work  in  which 
he  was  employed,  his  intelligence,  his  age,  and,  as  there  is  no 
definite  rule  laid  down  in  any  of  the  authorities  as  to  a  case  of  this 
kind,  any  other  particular  fact  that  in  the  given  instance  would 
assist  you  in  arriving  at  your  conclusion  as  to  the  extent  to  which 
his  wages  could  reasonably  be  expected  to  be  increased."  (Opinion 
of  Attorney-General  Hogan,  January  11,  1912.) 

See  Sections  26  and  31  and  notes. 

Sec.  33.  The  power  and  jurisdiction  of  the  board 
over  each  case  shall  be  continuing,  and  it  may  from  time 
to  time  make  such  modification  or  change  with  respect 
to  former  findings  or  orders  with  respect  thereto,  as,  in 
its  opinion,  may  be  justified. 

Note  by  the  board. — This  is  a  very  wise  provision  of  the  Act,  as 
it  will  enable  the  Board  to  guard  against  the  imposition  of  those 


§  171      WORKMEN'S  COMPENSATION  AND  INSURANCE.      438 

who  feign  injury  and  will  enable  the  Board  to  rectify  any  error  of 
judgment  which  it  may  have  made  in  awarding  too  large  or  too 
small  a  sum  to  an  injured  employe. 

Sec.  34.  The  board,  under  special  circumstances,  and 
when  the  same  is  deemed  advisable,  may  commute  pe- 
riodical benefits  to  one  or  more  lump  sum  payments. 

Note  by  the  board. — The  power  here  given  to  the  Board  will,  as 
a  matter  of  policy,  be  seldom  exercised,  as  in  practically  all  cases,  it 
is  better  for  the  beneficiaries  to  receive  the  award  to  which  they 
are  entitled  in  installments  at  stated  intervals,  rather  than  in  a 
lump  sum.  The  reasons  for  this  are  obvious. 

Sec.  35.  Benefits  before  payment  shall  be  exempt 
from  all  claims  of  creditors  and  from  any  attachment  or 
execution,  and  shall  be  paid  only  to  such  employes  or 
their  dependents. 

Note  by  the  board. — The  Board  will  follow  strictly  the  rule 
established  in  this  section.  No  orders  will  be  accepted,  or  assign- 
ments recognized  for  any  portion  of  the  award  made  to  an  injured 
employe.  But  payments  may  be  made  by  the  Board  directly  to  the 
persons  rendering  the  services  to  injured  employes  enumerated  in 
Sections  23  and  24. 

Sec.  36.  The  board  shall  have  full  power  and  au- 
thority to  hear  and  determine  all  questions  within  its 
jurisdiction,  and  its  decision  thereon  shall  be  final. 

Provided,  however,  in  case  the  final  action  of  such 
board  denies  the  right  of  the  claimant  to  participate  at 
all  in  such  fund  on  the  ground  that  the  injury  was  self- 
inflicted  or  on  the  ground  that  the  accident  did  not  arise 
in  the  course  of  employment,  or  upon  any  other  ground 
going  to  the  basis  of  the  claimant's  right,  then  the  claim- 
ant within  thirty  (30)  days  after  the  notice  of  the  final 
action  of  such  board  may,  by  filing  his  appeal  in  the  com- 
mon pleas  court  of  the  county  wherein  the  injury  was 
inflicted,  be  entitled  to  a  trial  in  the  ordinary  way,  and 
be  entitled  to  a  jury  if  he  demands  it.  In  such  a  pro- 
ceeding, the  prosecuting  attorney  of  the  county,  without 
additional  compensation,  shall  represent  the  state  liabil- 


439  OHIO  ACT.  §  171 

ity  board  of  awards,  and  he  shall  be  notified  by  the  clerk 
forthwith  of  the  filing  of  such  appeal. 

Within  thirty  days  after  filing  his  appeal,  the  appel- 
lant shall  file  a  petition  in  the  ordinary  form  against 
such  board  as  defendant  and  further  pleadings  shall  be 
had  in  said  cause,  according  to  the  rules  of  civil  proce- 
dure, and  the  court,  or  the  jury,  under  the  instructions 
of  the  court,  if  a  jury  is  demanded,  shall  determine  the 
right  of  the  claimant;  and,  if  they  determine  the  right 
in  his  favor,  shall  fix  his  compensation  within  the  limits 
and  under  the  rules  prescribed  in  this  act ;  and  any  final 
judgment  so  obtained  shall  be  paid  by  the  state  liability 
board  of  awards  out  of  the  state  insurance  fund  in  the 
same  manner  as  such  awards  are  paid  by  such  board. 

The  costs  of  such  proceeding,  including  a  reasonable 
attorney's  fee  to  the  claimant's  attorney  to  be  fixed  by 
the  trial  judge,  shall  be  taxed  against  the  unsuccessful 
party.  Either  party  shall  have  the  right  to  prosecute 
error  as  in  the  ordinary  civil  cases. 

Note  by  the  board. — See  Section  21-2  and  note  (C). 

The  action  of  the  Board  is  final  and  no  appeal  lies  therefrom 
where  it  determines  that  an  injury  has  been  sustained  in  the  course 
of  employment  and  fixes  the  amount  and  duration  of  the  award.  It 
is  only  in  cases  where  any  relief  whatever  is  denied  that  an  appeal 
is  allowed. 

The  proceedings  to  be  filed  in  the  Common  Pleas  Court  by  the 
claimant,  in  the  event  the  State  Liability  Board  of  Awards  refuses 
to  make  him  any  award,  is  called  an  "appeal"  in  this  section,  but  it 
is  really  an  original  action.  As  this  section  fully  describes  the 
nature  of  the  action,  we  deem  it  unnecessary  to  discuss  the  matter 
at  length.  It  will  be  noted,  however,  that  the  "appeal"  provided 
for  in  this  section  is  prosecuted  in  court  against  the  State  Liability 
Board  of  Awards,  and  in  no  event  is  the  employer  who  contributes 
to  the  State  Insurance  Fund  called  upon  to  make  any  defense  or  to 
concern  himself  in  any  way  as  to  the  proceedings. 

The  facts  necessary  to  be  found  by  the  Board  to  authorize  an 
award  are  as  follows: 

1.  That  the  employer  of  the  applicant  was  a  contributor  to  the 
State  Insurance  Fund  at  the  time  of  the  alleged  injury. 

2.  That  the  applicant  seeking  an  award  was  an  employe  within 
the  meaning  of  the  act  at  the  time  of  receiving  the  alleged  injury. 


§  171      WORKMEN'S  COMPENSATION  AND  INSURANCE.      440 

3.  That  an  injury  was  in  fact  sustained. 

4.  That  such  injury  was  sustained  while  in  the  course  of  his 
employment. 

5.  That  such  injury  incapacitated  him  either  wholly  or  par- 
tially for  a  longer  period  of  time  than  one  week. 

6.  That  no  suit  has  been  brought  or  attempted  to  be  brought 
in  any  court  by  the  injured  employe  prior  to  filing  his  claim  with 
the  State  Liability  Board  of  Awards. 

The  finding  by  the  Board  of  the  non-existence  of  any  of  the 
facts  above  enumerated  would  result  in  the  denial  of  an  award,  and 
in  such  case  an  appeal  is  allowed,  as  provided  in  this  section. 

Sec.  36-1.  Such  board  shall  not  be  bound  by  the 
usual  common  law  or  statutory  rules  of  evidence  or  by 
any  technical  or  formal  rules  of  procedure,  other  than 
as  herein  provided;  but  may  make  the  investigation  in 
such  manner  as  in  their  judgment,  is  best  calculated  to 
ascertain  the  substantial  rights  of  the  parties  and  to 
carry  out  justly  the  spirit  of  this  act. 

Sec.  37.  The  board  may  make  necessary  expendi- 
tures to  obtain  statistical  and  other  information  to  es- 
tablish the  classes  provided  for  in  section  17.  The  sal- 
aries and  compensation  of  the  secretary,  and  all  actuar- 
ies, accountants,  inspectors,  examiners,  experts,  clerks 
and  other  assistants,  and  all  other  expenses  of  the  board 
herein  authorized  including  the  premium  to  be  paid  by 
the  state  treasurer  for  the  bond  to  be  furnished  by  him, 
shall  be  paid  out  of  the  state  treasury  upon  vouchers, 
signed  by  two  of  the  members  of  such  board,  presented 
to  the  auditor  of  the  state,  who  shall  issue  his  warrant 
therefor  as  in  other  cases. 

Sec.  38.  No  provision  of  this  act  relating  to  the 
amount  of  compensation  shall  be  considered  by,  or 
called  to  the  attention  of  the  jury  on  the  trial  of  any 
action  to  recover  damages  as  herein  provided. 

Sec.  39.  Annually  on  or  before  the  15th  day  of 
November,  such  board,  under  the  oath  of  at  least  two 
of  its  members,  shall  make  a  report  to  the  governor 
which  shall  include  a  statement  of  the  number  of  awards 
made  by  it,  and  a  general  statement  of  the  causes  of  the 


441  OHIO   ACT.  §  172 

accidents  leading  to  the  injuries  for  which  the  awards 
were  made,  a  detailed  statement  of  the  disbursements 
from  the  expense  fund,  and  the  condition  of  its  respec- 
tive funds,  together  with  any  other  matters  which  such 
board  deems  it  proper  to  call  to  the  attention  of  the  gov- 
ernor, including  any  recommendations  it  may  have  to 
make. 

Sec.  40.  The  expense  of  such  board  in  carrying  out 
the  provisions  of  this  act  shall  be  paid  until  January  1, 
1912,  out  of  the  general  revenue  of  the  state  not  other- 
wise appropriated.  Such  expense  shall  not  exceed 
twenty-five  thousand  dollars  in  addition  to  the  salaries 
of  members  of  such  board. 

Sec.  41.  The  expenses  of  such  board  in  carrying 
out  the  provisions  of  this  act  shall  be  paid  from  January 
1st,  1912,  to  January  1st,  1913,  out  of  the  general  reve- 
nue fund  of  the  state  not  otherwise  appropriated.  Such 
expense  shall  not  exceed  one  hundred  thousand  dollars 
in  addition  to  the  salary  of  the  members. 

§  172.  The  decision  of  the  Supreme  Court  of  Ohio 
sustaining  the  law. — The  Ohio  Insurance  Fund  Act  is 
sustained  by  the  supreme  court  of  that  state,  as  a  valid 
exercise  of  legislative  power  and  not  repugnant  to  the 
federal  or  state  constitution  in  an  able  opinion  by  Mr. 
Justice  Johnson,  which  is  concurred  in  by  the  entire 
bench.  The  opinion  is  rendered  in  the  case  of  State  ex 
rel.  Yaple  v.  Creamer,4  and  reads  as  follows : 

"Johnson,  J. :  The  statute  in  question  provides  for  the 
creation  of  a  state  liability  board  of  awards,  which  shall 
establish  a  state  insurance  fund,  from  premiums  paid 
by  employers  and  employes  in  the  manner  provided  in 
the  act.  It  provides  a  plan  of  compensation  for  injuries, 
not  wilfully  self-inflicted,  resulting  from  accidents  to  em- 
ployes of  employers,  both  of  whom  have  voluntarily  con- 
tributed to  the  fund  in  the  proportion  of  10  and  90  per 
4 Ohio  St.  ,  97  N.  E.  602. 


§  172      WORKMEN'S  COMPENSATION  AND  INSURANCE.      442 

cent,  respectively.  It  applies  only  where  the  employer 
has  five  or  more  operators  regularly  in  the  same  busi- 
ness in  or  or  about  the  same  establishment.  An  em- 
ployer who  complies  with  the  act  is  relieved  from  liabil- 
ity to  respond  in  damages  at  common  law,  or  by  statute, 
for  injury  or  death  of  an  employe  who  has  complied  with, 
its  provisions,  except  when  the  injury  arises  from  the 
wilful  act  of  himself  or  officer  or  agent,  or  from  failure 
to  comply  with  any  law  or  ordinance  providing  for  pro- 
tection of  life  and  safety  of  employes,  in  which  event  the 
employe  or  his  representatives  have  their  election  be- 
tween a  suit  for  damages  and  a  claim  under  the  act.  Em- 
ployers of  five  or  more  who  do  not  pay  premiums  into 
the  fund  are  deprived  in  actions  against  them  of  the  com- 
mon-law defenses  of  the  fellow-servant  rule,  the  assump- 
tion of  risk,  and  of  contributory  negligence.  Where  the 
parties  are  operating  under  the  act,  the  injured  employe 
and  his  dependents  in  case  of  death  are  compelled  to 
accept  compensation  from  the  insurance  fund  in  the 
manner  provided,  except  in  the  cases  above  set  forth. 

"The  objections  to  the  validity  of  the  act  are  stated 
by  different  counsel  at  the  bar,  and  in  their  briefs,  under 
various  heads.  All  of  them  are  substantially  comprised 
in  the  following:  First.  That  it  is  an  unwarranted  exer- 
cise of  the  police  power  and  directs  the  state  to  use 
public  funds  for  private  purposes.  Second.  That  sec- 
tions 20-1  and  21-1  take  private  property  without  due 
process  of  law  in  contravention  of  sections  15,  16,  and 
19,  art.  1,  of  the  Constitution  of  Ohio,  and  the  four- 
teenth amendment  to  the  Constitution  of  United  States, 
in  that  it  deprives  employers  of  the  defense  of  assump- 
tion of  risk,  and  deprives  the  employe  of  part  of  his 
wages  to  be  paid  to  the  state  insurance  fund,  of  the  right, 
to  sue  for  injuries  sustained,  of  recourse  to  the  courts, 
and  of  a  trial  by  jury.  Third.  That  it  deprives  parties 
of  the  freedom  of  contract  and  impairs  the  obligations 
of  contracts.  Fourth.  That  it  'makes  an  unjust  and  arbi- 


443  OHIO  ACT.  §  172 

trary  classification  and  does  not  affect  all  who  are  within 
its  reason. 

Sections  20-1  and  21-1  are  as  follows,  viz. : 
"Sec.  20-1.  Any  employer  who  employs  five  or 
more  workmen  or  operatives  regularly  in  the  same  busi- 
ness or  in  or  about  the  same  establishment  who  shall 
pay  into  the  state  insurance  fund  the  premiums  provided 
by  this  act,  shall  not  be  liable  to  respond  in  damages  at 
common  law  or  by  statute,  save  as  hereinafter  provided, 
for  injuries  or  death  of  any  such  employe,  wherever  oc- 
curring, during  the  period  covered  by  such  premiums, 
provided  the  injured  employe  has  remained  in  his  serv- 
ice with  notice  that  his  employer  has  paid  into  the  state 
insurance  fund  the  premiums  provided  by  this  act;  the 
continuation  in  the  service  of  such  employer  with  such 
notice,  shall  be  deemed  a  waiver  by  the  employe  of  his 
right  of  action  as  aforesaid.  Each  employer  paying  the 
premiums  provided  by  this  act  into  the  state  insurance 
fund  shall  post  in  conspicuous  places  about  his  place  or 
places  of  business  typewritten  or  printed  notices  stating 
the  fact  that  he  has  made  such  payments;  and  the  same, 
when  so  posted,  shall  constitute  sufficient  notice  to  his 
employes  of  the  fact  that  he  has  made  such  payment; 
and  of  any  subsequent  payments  he  may  make  after  such 
notices  have  been  posted. 

"Sec.  21-1.  All  employers  who  employ  five  or  more 
workmen  or  operatives  regularly  in  the  same  business, 
or  in  or  about  the  same  establishment  who  shall  not  pay 
into  the  state  insurance  fund  the  premiums  provided  by 
this  act,  shall  be  liable  to  their  employes  for  damages 
suffered  by  reason  of  personal  injuries  sustained  in  the 
course  of  employment  caused  by  the  wrongful  act, 
neglect  or  default  of  the  employer,  or  any  of  the  em- 
ployer's officers,  agents,  or  employes,  and  also  to  the 
personal  representatives  of  such  employes  where  death 
results  from  such  injuries  and  in  such  action  the  de- 


§  172      WORKMEN'S  COMPENSATION  AND  INSURANCE.      444 

fendant  shall  not  avail  himself  or  itself  of  the  following 
common-law  defenses : 

"The  defense  of  the  fellow-servant  rule,  the  defense 
of  the  assumption  of  risk,  or  the  defense  of  contributory 
negligence." 

"The  law  was  passed  after  a  report  referred  to  in  the 
briefs,  of  a  commission  appointed  by  the  governor,  in 
obedience  to  a  statute  passed  for  that  purpose.  The 
report  was  prepared  after  an  exhaustive  research  into 
industrial  conditions  in  many  countries,  and  an  examina- 
tion of  laws,  which  have  been  passed  in  the  effort  to 
improve  such  conditions.  Substantially  its  conclusions 
are,  that  the  system  which  has  been  followed  in  this 
country,  of  dealing  with  accidents  in  industrial  pursuits, 
is  wholly  unsound,  that  there  is  an  intelligent  and  wide- 
spread public  sentiment  which  calls  for  its  modification 
and  improvement,  and  that  the  general  welfare  requires 
it.  That  there  has  been  enormous  waste  under  the  pres- 
ent system,  and  that  the  action  for  personal  injuries  by 
employe  against  employer  no  longer  furnishes  a  real 
and  practical  remedy,  annoys  and  harasses  both,  and 
does  not  meet  the  economic  and  social  problem  which 
has  resulted  from  modern  industrialism.  Conceding  the 
desirability  of  improvement,  of  legislative  and  govern- 
mental action,  and  the  good  results  in  other  countries 
which  has  no  written  constitution  to  limit  the  legislative 
power,  we  in  this  country  have  the  problem  of  devising 
a  plan  which  shall  not  infringe  the  fundamental  law. 

"It  is  apparent,  from  a  contemplation  of  the  whole 
enactment  and  its  scope  and  purpose,  as  well  as  of  the 
participation  of  the  state  in  its  administration,  that  it 
must  find  its  validity,  if  at  all,  in  the  police  power  of  the 
state. 

"There  is  now  (it  can  be  fairly  said)  general  concur- 
rence in  the  meaning  of  the  term  "police  power"  and  as 
to  its  extent. 

Professor  Freund  in  his  work  says  at  section  2 : 


445  OHI°  ACT.  §  172 

"The  term  'police  power'  has  never  been  circum- 
scribed. It  means  at  the  same  time  a  power  and  func- 
tion of  government,  a  system  of  rules  and  an  adminis- 
trative organization  and  force." 

"And  in  section  3,  after  discussing  its  nature,  and 
aims,  he  says: 

"It  will  reveal  the  police  power  not  as  a  fixed  quan- 
tity, but  as  the  expression  of  social,  economic  and  politi- 
cal conditions.  As  long  as  these  conditions  vary,  the 
police  power  must  continue  to  be  elastic,  i.  e.,  capable  of 
development." 

In  State,  ex  rel  Monnett,  v.  Pipe  Line  Company,  61 
Ohio  St.,  520,  as  to  the  constitutionality  of  the  Ohio 
anti-trust  law,  it  is  said : 

"The  definite  proposition  of  counsel  upon  this  point 
is  that  although  the  act  is  the  exercise  of  legislative 
power,  it  transcends  the  provisions  of  the  state  and  fed- 
eral constitutions,  which  render  inviolable  the  rights  of 
liberty  and  property,  which  include  the  right  to  make 
contracts.  It  would  be  difficult  to  place  too  high  an 
estimate  upon  these  guaranties,  and  they  include  the 
right  to  make  contracts.  But  it  is  settled  that  these 
guaranties  are  themselves  limited  by  the  public  welfare 
for  the  exercise  of  the  police  power." 

In  Phillips  v.  State,  77  Ohio  St.,  216,  it  is  said: 

"It  is  almost  an  axiom  that  anything  which  is  rea- 
sonable and  necessary  to  secure  the  peace,  safety,  morals 
and  best  interests  of  the  commonwealth  may  be  done 
under  the  police  power;  and  this  implies  that  private 
rights  exist  subject  to  the  public  welfare.  These  prin- 
ciples are  plainly  recognized  in  Article  XIV,  Section  1, 
of  the  Constitution  of  the  United  States,  and  Article  I, 
Section  19,  of  the  Constitution  of  Ohio." 

The  case  of  Noble  State  Bank  v.  Haskell,  219  U.  S., 
104,  and  Assaria  State  Bank  v.  Dolley,  219  U.  S.,  121, 
involved  the  constitutionality  of  laws  enacted  by  Okla- 
homa and  Kansas,  in  the  exercise  of  the  police  power  to 


§  172      WORKMEN'S  COMPENSATION  AND  INSURANCE.      446 

establish  bank  depositors  guaranty  funds  created  by 
levy  on  each  of  the  banks.  Objection  was  made  that  the 
tax  was  an  appropriation  of  the  property  of  one  bank 
to  pay  debts  of  another  without  due  process  of  law. 

Mr.  Justice  Holmes  said: 

"The  substance  of  the  plaintiff's  argument  is  that 
the  assessment  takes  private  property  for  private  use 
without  compensation.  *  *  *  Nevertheless,  not- 
withstanding the  logical  form  of  the  objection,  there  are 
more  powerful  considerations  on  the  other  side.  In  the 
first  place  it  is  established  by  a  series  of  cases  that  an 
ulterior  public  advantage  may  justify  a  comparatively 
insignificant  taking  of  private  property  for  what,  in  its 
immediate  purpose,  is  a  private  use.  *  *  * 

"It  may  be  said  in  a  general  way  that  the  police 
power  extends  to  all  the  great  public  needs  (Camfield  v. 
United  States,  167  U.  S.,  518).  It  may  be  put  forth  in 
aid  of  what  is  sanctioned  by  usage,  or  held  by  the  pre- 
vailing morality  or  strong  and  preponderant  opinion  to 
be  greatly  and  immediately  necessary  to  the  public  wel- 
fare." 

"We  think  it  clear  that  the  objects  and  purposes  as 
above  set  forth,  which  the  legislature  contemplated  in 
the  passage  of  the  law  in  question,  are  sufficient  to  sus- 
tain the  exercise  of  the  police  power,  and  the  participa- 
tion of  the  state  in  the  manner  provided.  Whether  the 
plan  adopted  is  the  most  appropriate  or  best  calcu- 
lated to  accomplish  those  objects  are  matters  with  which 
the  court  is  not  concerned,  and  the  law  should  not  be 
held  to  be  invalid  unless  clearly  in  violation  of  some  pro- 
vision of  the  Constitution. 

"It  is  urgently  insisted  that  while  the  law  is  appar- 
ently permissive  and  leaves  its  operation  to  the  election 
of  employers  and  employes,  it  is  really  coercive  and 
upon  this  premise  much  persuasive  argument  against 
the  validity  of  the  law  is  based.  This  is  an  important 
question  in  the  case. 


447  OHIO  ACT.  §  172 

"An  examination  of  the  sections  touching  the  ques- 
tions made  is  here  necessary.  After  providing  in  sec- 
tion 20-1  that  an  employer  who  elects  to  comply  with 
the  act  shall  be  relieved  from  liability  to  the  employe  at 
common  law,  or  by  statute  (except  as  provided  in  section 
21-2),  it  is  then  enacted  in  section  21-1 :  All  employers 
who  shall  not  pay  into  the  insurance  fund,  *  *  * 
shall  be  liable  to  their  employes  for  damages,  *  *  * 
caused  by  the  wrongful  act,  neglect  or  default  of  the 
employer,  his  agents,  etc.,  and  in  such  cases  the  de- 
fenses of  assumption  of  risk,  fellow-servant,  and  con- 
tributory negligence  are  not  available.  So  that  an  em- 
ployer who  elects  not  to  come  into  the  plan  of  insurance 
may  still  escape  liability  if  he  is  not  guilty  of  wrongful 
act,  neglect,  or  default.  His  liability  is  not  absolute  as 
in  the  case  of  the  New  York  statute  hereinafter  referred 
to.  And  it  can  not  be  said  that  the  withdrawal  of  the 
defenses  of  assumption  of  risk,  fellow-servant  and  con- 
tributory negligence  as  against  an  employer  who  does 
not  go  into  the  plan,  is  coercive,  for  such  withdrawal  is 
in  harmony  with  the  legislative  policy  of  the  state  for 
a  number  of  years  past.  The  law  known  as  the  Norris 
law  passed  in  1910,  withdrew  these  defenses  in  the  par- 
ticulars covered  by  the  law. 

"As  to  the  employe,  if  the  parties  do  not  elect  to 
operate  under  the  act,  he  has  his  remedy  for  the  neglect, 
wrongful  act  or  default  of  his  employer  and  agents  as 
before  the  law  was  passed,  and  is  not  subject  to  the  de- 
fenses named.  If  the  parties  are  operating  under  the  act 
the  employe  contributes  to  an  insurance  fund  for  the 
benefit  of  himself  or  his  heirs,  and  in  case  he  is  injured  or 
killed,  he  or  they  will  receive  the  benefit  even  though  his 
injury  or  death  was  caused  by  his  own  negligent  or 
wrongful  act,  not  wilful.  And  that  is  not  all.  Under  sec- 
tion 21-2  if  the  parties  are  operating  under  the  act  and 
the  employe  is  injured  or  killed,  and  the  injury  arose 
from  the  willful  act  of  the  employer,  his  officer  or  agent, 


§  172      WORKMEN'S  COMPENSATION  AND  INSURANCE.      448 

or  from  failure  of  the  employer  or  agent  to  comply  with 
legal  requirements,  as  to  safety  of  employes,  then  «the 
injured  employe  or  his  legal  representative  has  his  op- 
tion to  claim  under  the  act  or  sue  in  court  for  damages. 

"Therefore,  the  only  right  of  action  which  this  statute 
removes  from  the  employe  is  the  right  to  sue  for  mere 
negligence  (which  is  not  wilful  or  statutory)  of  his  em- 
ployer, and  it  is  within  common  knowledge  that  this  has 
become  in  actual  practice  a  most  unsubstantial  thing. 

"It  is  conceded  by  counsel  that  the  particulars  named 
in  section  21-2  are  such  as  form  the  basis  for  a  large 
portion  of  claims  for  personal  injuries.  Many  em- 
ployers may  elect  to  remain  outside  its  provisions; 
it  would  not  be  strange  if  many  do  so.  On  the  other 
hand  some  workmen  may  feel  disposed  to  do  like- 
wise in  spite  of  what  would  seem  to  be  to  their  manifest 
advantage  in  securing  the  benefits  of  the  insurance. 
However,  if  there  should  be  such  general  acceptance  of 
and  compliance  with  the  statute  as  its  framers  hope  for, 
so  as  to  bring  a  large  part  of  the  labor  employed  in  the 
industrial  enterprises  of  the  state  within  its  influence  and 
operation,  that  would  not  demonstrate  its  coercive  char- 
acter. On  the  contrary  it  would  justify  the  enactment. 
Naturally  time  and  experience  will  disclose  imperfec- 
tions and  inefficiencies  in  the  plan;  but  if  it  should  prove 
to  be  feasible,  and  appropriate  in  a  general  way,  these 
imperfections  can  be  corrected  by  the  legislature.  On 
account  of  the  common  law  and  statutory  rights  still 
preserved  to  the  parties  by  this  statute  (as  we  have 
pointed  out)  in  cases  where  the  election  is  made  to 
come  under  its  provisions  as  well  as  not  to  do  so  taken 
in  connection  with  the  advantage  to  each  which  the  plan 
contemplates,  we  can  not  say  that  the  statute  is  coercive. 
As  was  said  in  the  Wisconsin  case:  'Laws  can  not  be 
set  aside  upon  mere  conjecture  or  speculation.  The 
court  must  be  able  to  say  with  certainty  that  an  unlaw- 
ful result  will  follow.'  We  do  not  see  how  any  such 


449  OHI°  ACT-  §172 

thing  can  be  said  here.  Every  consideration  of  prudence 
and  self-interest  (things  not  easily  associated  with  com- 
pulsion and  coercion)  would  seem  to  lead  an  employe  to 
voluntarily  make  the  contribution  and  waiver  contem- 
plated. 

"[2]  Second.  Does  this  statute  take  private  prop- 
erty without  due  process  of  law  and  deny  the  guarantee 
of  the  Constitution  as  claimed? 

"Perhaps  no  exact  definition  of  "Due  process  of  law" 
has  been  agreed  on.  Judge  Story  defines  it  in  his  work 
on  the  Constittuion  (Section  1935)  :  'The  right  to  be  pro- 
tected in  life,  and  liberty  and  in  the  acquisition  of  prop- 
erty under  equal  and  impartial  laws,  which  govern  the 
whole  community.  This  puts  the  state  upon  its  true 
foundation  for  the  establishment  and  administration  of 
general  justice,  justice  of  law,  equal  and  fixed,  recog- 
nizing individual  rights  and  not  impairing  them.'  In 
Cooley  on  Const.  Limit.,  Sec.  356,  it  is  said:  'Due 
process  of  law  in  each  particular  case,  means  such 
an  exercise  of  the  government  as  the  settled  max- 
ims of  the  law  permit  and  sanction,  and  under  such  safe- 
guards for  the  protection  of  individual  rights  as  those 
maxims  prescribe  for  the  classes  of  cases  to  which  the 
one  in  question  belongs.' 

"The  case  of  Ives  v.  South  Buffalo  Ry.  Co.,  201  N.  Y., 
276,  94  N.  E.  431,  34  L.  R.  A.  (N.  S.)  162  (relied 
on  by  some  of  counsel),  involved  a  statute  dif- 
ferent in  many  essentials  from  the  Ohio  law.  Its  con- 
trolling feature  was  that  every  employer  engaged  in 
any  of  the  classified  industries  should  be  liable  to  a  work- 
man for  injury  arising  in  the  course  of  the  work  by  a 
necessary  risk  inherent  in  the  business  whether  the  em- 
ployer was  at  fault  or  not  and  whether  the  employe  was 
at  fault  or  not,  except  when  its  fault  was  wilful.  The 
court  held  the  law  invalid,  as  imposing  the  ordi- 
nary risk  of  a  business  (which  under  the  common  law 
the  employe  was  held  to  assume)  on  the  employer.  The 

29— BOYD  W  C 


§  172      WORKMEN'S  COMPENSATION  AND  INSURANCE.      450 

court  states  one  of  the  premises  on  which  it  proceeds  as 
follows:  "When  our  constitutions  were  adopted,  it  was 
the  law  of  the  land  that  no  man  who  was  without 
fault  or  negligence  could  be  held  liable  in  damages 
for  injuries  sustained  by  another."  But  that  rule 
was  not  of  universal  application.  At  common  law 
one  may  sustain  such  relation  to  the  inception  of 
an  undertaking  that  he  will  be  held  liable  for  neg- 
ligence in  the  progress  of  the  enterprise,  even  though 
he  have  no  part  or  connection  with  the  negligent  act 
itself  which  caused  the  injury.  Such,  for  instance,  as 
where  the  owner  of  property  contracts  with  an  indepen- 
dent contractor  to  do  work  which,  though  entirely  law- 
ful, yet  has  inherent  probabilities  of  harm  if  negligently 
performed.  The  position  in  the  line  of  causation  which 
employers  sustain  in  modern  industrial  pursuits  is  of 
course  the  basic  fact  on  which  employers'  liability  laws 
rest. 

"As  to  the  right  to  abolish  the  defense  of  assumption 
of  risk,  it  is  enough  to  say  here  that  the  great  weight  of 
authority  is  against  the  New  York  position  and  the  posi- 
tion of  such  of  the  counsel  in  this  case  as  insist  on  that 
rule.  Some  of  counsel  appearing  against  the  validity  of 
this  law,  concede  the  right  to  abolish  the  defenses  re- 
ferred to.  The  supreme  courts  of  Massachusetts,  Wis- 
consin and  Washington  have  recently  held  in  cases  sus- 
taining the  validity  of  statutes  similar  to  the  one  here 
attacked,  that  it  is  within  the  legislative  power  to  abolish 
the  defense  referred  to.  In  re  Opinion  of  Justices,  96 
N.  E.  Rep.  308  (Mass.) ;  Borgnis  v.  Falk  Co.,  133  N.  W. 
Rep.  209  (Wis.)  ;  State,  ex  rel.,  v.  Clausen,  117  Pac.  1101 
(Washington). 

"Since  the  argument  of  this  case  the  Supreme  Court 
of  the  United  States  has  decided  the  case  of  Mondou  v. 
N.  Y.,  N.  H.  &  H.  Ry.  Co.,  223  U.  S.  1,  32  Sup.  Ct. 
169,  56  L,  Ed. ,  and  has  sustained  the  constitution- 
ality of  the  employers  liability  law  passed  by  Congress. 


45 1  OHIO    ACT.  §  172 

The  abolition  of  these  rules  was  urged  as  an  objection 
to  the  law.  The  court  say:  'Of  the  objection  to  these 
changes  it  is  enough  to  observe :  First.  A  person  has  no 
property,  no  vested  interest,  in  any  rule  of  the  common 
law.  That  is  only  one  of  the  forms  of  municipal  law, 
and  is  no  more  sacred  than  any  other.  Rights  of  prop- 
erty which  have  been  created  by  the  common  law  can- 
not be  taken  away  without  due  process;  but  the  law 
itself,  as  a  rule  of  conduct,  may  be  changed  at  the  will 
*  *  *  of  the  legislature,  unless  prevented  by  con- 
stitutional limitations.  Indeed,  the  great  office  of  stat- 
utes is  to  remedy  defects  in  the  common  law  as  they  are 
developed,  and  to  adapt  it  to  the  changes  of  time  and  cir- 
cumstances. Munn  v.  Illinois,  94  U.  S.  113,  134  (24  L. 
Ed.  77);  Martin  v.  Pittsburg  &  Lake  Erie  R.  R.  Co., 
203  U.  S.  284,  294  (27  Sup.  Ct.  100,  51  L.  Ed.  184) ;  The 
Lottawanna,  21  Wall.  558,  577  (22  L.  Ed.  654) ;  West- 
ern Union  Telegraph  Co.  v.  Commercial  Milling  Co.,  218 
U.  S.  406,  417  (31  Sup.  Ct.  59,  54  L.  Ed.  1088).' 

"The  recent  case  of  State  v.  Boone,  84  Ohio  St.  346, 
95  N.  E.  924,  is  cited  as  indicating  limitations  of  the 
police  power  which  apply  here.  The  act  involved  in 
that  case  required  the  physician  in  attendance  on  a  case 
of  confinement  to  investigate  and  certify  without  com- 
pensation to  certain  facts  which  would  not  naturally 
come  within  the  knowledge  of  the  attending  physician, 
and. as  to  matters  wholly  outside  the  scope  of  his  pro- 
fessional duty.  The  court  held  the  statute  unconstitu- 
tional as  to  physician  and  midwife  because  of  an  unrea- 
sonable and  arbitrary  exercise  of  the  police  power.  That 
was  the  proposition  of  law  decided  in  that  case,  and  no 
other  proposition  was  decided.  The  court  was  careful 
to  point  out  in  the  opinion  and  also  on  motion  for  re- 
hearing that  the  state  might  require  the  physician  to 
report  to  proper  authority  facts  which  would  come 
naturally  under  his  observation  in  the  line  of  his  duty 
without  compensation.  Other  matters  referred  to  in 


§  172      WORKMEN'S  COMPENSATION  AND  INSURANCE.      452 

the  opinion  were  not  included  in  the  syllabus  which 
stated  the  law  decided  by  the  court. 

"The  court  remarks  that  the  police  power  inheres  in 
the  sovereignty.  Its  foundation  'is  the  right  and  duty 
to  provide  for  the  common  welfare  of  the  governed.' 
Manifestly  the  reasoning  which  led  to  the  conclusion  in 
that  case  that  the  statute  had  been  passed  by  an  unrea- 
sonable exercise  of  the  police  power  can  have  no  appli- 
cation here. 

"State  ex  rel.,  v.  Hubbard,  22  C.  C.  253,  affirmed 
without  opinion,  65  Ohio  St.  574,  and  State,  ex  rel.,  v. 
Guilbert,  56  Ohio  St.  575,  involving  the  validity  of  stat- 
utes creating  a  teachers  pension  fund  and  the  Torrens 
law  to  establish  an  insurance  fund  for  the  protection  of 
land  titles  concerned  laws  which  were  wholly  compul- 
sory with  no  element  of  choice  and  were  not  claimed  to 
have  been  passed  under  the  police  power  to  cure  un- 
desirable public  conditions  but  for  mere  private  benefit. 
These  cases  can  therefore  have  no  relation  to  a  plan 
adopted  to  promote  the  general  welfare,  the  contribu- 
tions to  which  are  made  after  an  election  by  the  parties 
to  participate  in  the  undertaking. 

"It  is  urged  by  counsel  opposing  this  law  that  the 
case  of  Byers  v.  Meridian  Printing  Co.,  84  Ohio  St.,  408, 
is  of  conclusive  weight  condemnatory  of  the  legislation 
we  are  examining.  In  that  case  it  is  ruled  that  an  amend- 
ment to  section  5094,  Revised  Statutes  (changing  the 
presumption  of  malice  and  burden  of  proof  in  action  for 
libel  where  retraction  is  made  on  demand,  in  the  manner 
stated),  is  unconstitutional.  The  decision  was  put  on 
the  ground  that  plaintiff  was  guaranteed  his  remedy  by; 
due  course  of  law  for  an  injury  done  in  his  land,  goods, 
person  or  reputation,  under  Article  I,  Section  16,  Con- 
stitution of  Ohio.  When  the  injury  was  done  to  the 
reputation  of  plaintiff  by  the  libel,  he  was  entitled  to  his 
constitutional  remedy  at  law,  but  at  the  same  time  he 
was  enitled  to  demand  of  the  publisher  a  retraction  of 


453  OHJO  ACT.  §  172 

the  libel.  Therefore  the  legislature  had  no  right  to  put 
him  on  his  election  as  to  two  courses  both  of  which  he 
was  entitled  to  follow.  The  court  is  careful  to  declare 
that  it  is  not  disposed  to  question  that  a  citizen  may 
waive  a  constitutional  right.  But  being  compelled  to 
elect  between  two  rights,  both  of  which  a  person 
is  entitled  to,  has  no  resemblance  to  waiver.  And 
under  the  law  under  investigation  here  as  already 
shown,  the  right  of  action  (for  injury  by  wilful  act 
of  the  employer  and  for  his  failure  to  comply  with 
requirements  as  to  the  safety  of  employes)  is  still 
reserved  to  the  employes.  So  that  the  only  thing 
withdrawn  by  this  law,  and  to  which  withdrawal  he 
consents  by  his  voluntary  election  to  operate  under  the 
law,  is  his  right  of  action  for  mere  negligence,  and  in 
place  of  it  he  receives  the  substantial  protections  and 
privileges  under  the  state  insurance  fund."  *  *  * 

"The  court  then  shows  that  many  boards  hear  and 
determine  questions  affecting  private  as  well  as  public 
rights,  and  quotes  with  approval  from  State,  ex  rel.,  v. 
Harmon,  31  Ohio  St.,  250:  'The  authority  to  ascertain 
facts  and  apply  the  law  to  the  facts  when  ascertained 
pertains  as  well  to  other  departments  of  government  as 
to  the  judiciary.'  These  principles  were  applied  in 
France  v.  State,  57  Ohio  St.,  1,  47  N.  E.  1041,  in  which 
case  the  court  remark  that  the  case  of  State,  ex  rel.,  v. 
Guilbert,  56  Ohio  St.  576,  47  N.  E.  551,  38  L.  R.  A.  519, 
60  Am.  St.,  Rep.  756,  forms  no  exception,  for  the  powers 
1  of  the  recorder  under  the  statute  there  in  question  were 
essentially  those  which  properly  belong  to  a  court. 

"Does  the  law  deny  recourse  to  the  courts  and  trial 
by  jury?  How  does  it  affect  an  injured  employe  where 
the  parties  are  operating  under  the  act? 

"In  B.  &  O.  Rd.  Co.  v.  Stankard,  56  Ohio  St.  232,  46 
N.  E.  577,  49  L.  R.  A.  381,  60  Am.  St.  Rep.  745,  which 
was  a  suit  by  the  beneficiaries  of  a  member  of  the  relief 
department  of  the  railroad,  the  company  answered  set- 


§  172     WORKMEN'S  COMPENSATION  AND  INSURANCE.     454 

ting  up  a  rule  which  provided  that  the  decision  of  the 
relief  department  should  be  final.  The  court  say:  'The 
right  to  appeal  to  the  courts  for  redress  of  wrongs 
is  one  of  those  rights  which  in  its  nature  under  our 
Constitution  is  inalienable  and  can  not  be  thrown  off 
or  bargained  away.'  But  the  court  shows  that  parties 
may  contract  to  submit  the  fixing  of  facts  to  some  non- 
judicial  tribunal  and  say:  'In  insurance,  and  other  like 
cases,  where  the  ultimate  question  is  the  payment  of  a 
certain  sum  of  money,  certain  facts  may  be  fixed  by  a 
person  selected  for  that  purpose  in  the  contract,  but  the 
ultimate  question  as  to  whether  the  money  shall  be 
paid  or  not  may  be  litigated  in  the  courts,  and  a  stipu- 
lation to  the  contrary  is  void.'  So  that  under  that  rule 
the  parties  may  conclusively  bind  themselves  in  advance 
to  submit  questions  of  amount,  etc.,  to  some  tribunal 
other  than  a  court;  but  the  ultimate  question  of  actual 
liability  can  not  be  removed  from  the  courts. 

"Now,  in  this  statute,  section  36  is  as  follows :  'Sec. 
36.  The  board  shall  have  full  power  and  authority  to 
hear  and  determine  all  questions  within  its  jurisdiction, 
and  its  decision  thereon  shall  be  final.  Provided,  how- 
ever, in  case  the  final  action  of  such  board  denies  the 
right  of  the  claimant  to  participate  at  all  in  such  fund 
*  *  *  upon  any  *  *  *  ground  going  to  the 
basis  of  the  claimant's  right,  then  the  claimant  within 
thirty  (30)  days  after  the  notice  of  the  final  action  of 
such  board  may,  by  filing  his  appeal  in  the  common  pleas 
court  of  the  county  wherein  the  injury  was  inflicted,  be 
entitled  to  a  trial  in  the  ordinary  way,  and  be  entitled  to 
a  jury  if  he  demands  it.  In  such  a  proceeding,  the  prose- 
cuting attorney  of  the  county,  without  additional  com- 
pensation, shall  represent  the  state  liability  board  of 
awards,  and  he  shall  be  notified  by  the  clerk  forthwith 
of  the  filing  of  such  appeal.  Within  thirty  days  after 
filing  his  appeal,  the  appellant  shall  file  a  petition  in  the 
ordinary  form  against  such  board  as  defendant.'  There- 


455  OHIO  ACT.  §  172 

fore,  if  the  board  denies  the  claimant's  right  to  partici- 
pate in  the  fund  on  any  ground  going  to  the  basis  of  his 
claim,  he  may  by  filing  an  appeal  and  petition  in  the 
ordinary  form  be  entitled  to  trial  by  jury;  the  case  pro- 
ceeding as  any  other  suit. 

"It  is  not  an  appeal  in  the  sense  of  appealing  from 
one  court  to  another,  but  is  really  the  beginning  of  an  or- 
iginal suit.  As  to  this  it  must  be  remembered  that  the 
whole  proceeding  is  with  and  against  the  board  of 
awards.  His  claim  is  not  against  the  employer.  There 
is  no  dispute  between  them.  His  claim  is  for  the  bene- 
fits of  the  insurance  fund.  The  board  of  awards  inquire 
into  the  matters  pointed  out  in  the  statute,  and  in  case 
of  dispute  as  to  whether  there  is  any  ultimate  right  to 
'participate  at  all  in  such  fund'  he  has  his  recourt  to 
the  courts.  But  he  is  not  confined  to  that  method  of 
proceeding.  If  he  claims  that  the  injury  was  caused  by 
the  wilful  act  of  the  employer  or  officer  or  agent  or  from 
failure  to  comply  with  legal  requirements  as  to  safety  of 
employes,  etc.,  he  may  waive  his  claim  under  the  act  and 
sue  in  court  for  his  damages.  But  in  his  petition  in  such 
case  he  could  not  claim  damages  for  mere  negligence; 
he  having  elected  to  waive  that  cause  of  action,  having 
elected,  as  it  were,  to  assume  the  risk  of  his  employer's 
mere  neglect  in  return  for  the  benefits  and  protection  to 
himself  and  his  heirs  afforded  by  the  terms  of  the  act. 

"[4]  Another  objection  that  is  urged  against  this 
statute  is,  that  it  makes  an  unjust  and  arbitrary  classi- 
fication and  does  not  affect  all  who  are  within  its  reason 
as  required  by  Section  26,  Article  II,  of  Constitution  of 
Ohio.  Under  the  law  only  employers  of  five  or  more  are 
affected  by  it. 

"Spear,  J.,  in  Cincinnati  v.  Steinkamp,  54  Ohio  St., 
295,  remarked:  'In  order  to  be  general  and  uniform  in 
operation,  it  is  not  necessary  that  the  law  should  ope- 
rate upon  every  person  in  the  state,  nor  in  every  local- 
ity; it  is  sufficient,  the  authorities  concede  in  holding,  if 


§  172      WORKMEN'S  COMPENSATION  AND  INSURANCE.      456 

it  operates  upon  every  person  brought  within  the  rela- 
tion and  circumstances  provided  for,  and  in  every  local- 
ity where  the  condition  exists.'  To  same  effect  are 
Platt  v.  Craig  et  al.,  66  Ohio  St.  75,  63  N.  E.  594;  Gent- 
sch,  v.  State,  ex  rel.,  71  Ohio  St.  151,  71  N.  E.  900;  Ry. 
Co.  v.  Hosterman,  72  Ohio  St.  107,  63  N.  E.  1075. 

"We  think  the  classification  is  reasonable  and  proper. 
In  the  nature  of  the  case  the  risks  of  any  regular  employ- 
ment are  less  and  the  opportunity  for  avoiding  them 
better  where  an  employe  is  one  of  four  than  when  the 
number  is  larger.  As  was  said  by  Winslow,  C.  J.,  in 
Borgnis  v.  Falk,  supra:  'The  difference  in  the  situation 
is  not  merely  fanciful;  it  is  real.'  St.  Louis  Cons.  Coal 
Co.  v.  Illinois,  185  U.  S.,  203,  22  Sup.  Ct.  616,  46  L. 
Ed.  872,  is  a  case  in  which  a  classification  was  made 
under  somewhat  similar  manner,  and  was  upheld.  Nor 
do  we  think  it  an  objection  that  the  law  applies  only 
to  workmen  and  operatives  and  not  to  all  others.  This 
classification  brings  within  the  law  all  employes  within 
its  reason. 

"[5]  As  to  the  suggestion  that  this  statute  impairs 
the  obligation  of  contracts  it  is  sufficient  to  say  that  it 
•can,  of  course,  not  affect  contracts  in  existence  and  un- 
expired  at  the  time  it  is  put  into  operation  by  the  em- 
ployer. 

"It  is  suggested  that  this  legislation  marks  a  radical 
step  in  our  governmental  policy  not  contemplated  by  the 
Constitution,  and  which  it  is  the  duty  of  the  court  to 
condemn.  But  it  creates  no  new  right  or  new  remedy 
for  wrong  done.  It  is  an  effort  to  in  some  degree  answer 
the  requirements  of  conditions  which  have  come  in  an 
age  of  invention  and  momentous  change.  The  courts 
of  the  country,  while  firmly  resisting  encroachments  on 
the  Constitutions  in  the  past,  have  yet  found  in  their 
ample  limits  sufficient  to  enable  us  to  meet  the  emer- 
gencies and  needs  of  our  development,  and  we  do  not 


457  OHI°  ACT- 

find  that  this  statute  goes  beyond  the  bounds  put  upon 
the  legislative  will. 

"The  demurrer  to  the  petition  will  be  overruled,  and 
the  writ  of  mandamus  awarded. 

"Demurrer  overruled." 

§  173.  Workshop  and  factory  inspection  and  regu- 
lation act. — This  statute,  which  takes  the  place  of  an 
earlier  act  on  the  subject,  reads  as  follows : 

Section  1.  That  sections  1003  and  1004  of  the  gen- 
eral code  be  amended  so  as  to  read  as  follows: 

Sec.  1003.  Every  manufacturer  of  the  state  shall 
within  three  days  after  the  happening  of  any  accident  in 
his  establishment  resulting  in  death,  or  bodily  injury  of 
such  a  nature  that  the  person  injured  does  not  return  to 
his  or  her  employment  in  said  establishment  within  two 
or  more  days  after  the  occurrence  of  the  accident, 
forward  by  mail  to  the  chief  inspector  of  workshops  and 
factories  a  report  containing  the  following  particulars  in 
full: 

1.  Name   and   address   of   manufacturer,    (person, 
firm  or  corporation). 

2.  Nature  of  business  in  which  manufacturer  is  en- 
gaged and  place  where  accident  occurred. 

3.  Name,  address,  sex,  age  and  kind  of  employment 
of  person  killed  or  injured  and  whether  such  person  is 
married  or  single. 

4.  Time  of  day  deceased  began  work  on  day  of  acci- 
dent, time  of  day  accident  occurred,  and  date  of  accident 
or  death. 

5.  At    what    employed    when    killed    or     injured, 
whether   such   person   was   familiar   with   the  work   at 
which  engaged  or  the  machinery  which  he  was  operating 
and  whether  such  machinery  was  in  good  order  and 
guarded  so  as  to  prevent  accident  under  ordinary  cir- 
cumstances.    If  such  machinery  was  not  guarded,  rea- 
sons for  not  guarding  the  same. 


§  173     WORKMEN'S  COMPENSATION  AND  INSURANCE.     458 

6.  Description  of  manner  in  which  such  person  was 
killed  or  injured. 

7.  Description  of  nature  and  extent  of  injury. 

8.  Number  of  persons  deprived  of  support  in  conse- 
quence of  such  death  or  injury. 

Such  manufacturer  shall,  in  all  cases  of  death  within 
six  months  after  the  accident,  or  in  case  the  person  in- 
jured returns  to  work  in  his  establishment  within  six 
months  after  the  accident,  forwaird  by  mail  to  the  chief 
inspector  of  workshops  and  factories  within  five  days 
after  such  death  or  such  return  to  work,  or  in  case  of  no 
death  or  return  to  work  within  six  months,  then  within 
five  days  after  the  expiration  of  such  six  months,  a  sup- 
plemental report  which  shall  contain  the  following  par- 
ticulars in  full: 

1.  Name  and  address  of  manufacturer. 

2.  Name,  sex  and  age  of  person  injured  and  date 
and  place  where  accident  occurred. 

3.  A  correct  statement  of  the  amount  of  wages  paid 
to  such  person  at  the  time  of  such  injury  and  the  amount 
of  wages  lost  during  the  period  between  the  time  of  such 
accident  and  the  time  of  forwarding  such  supplemental 
report. 

4.  The  amount  of  compensation  paid  by  such  manu- 
facturer by  reason  of  such  injury  or  death,  the  names  of 
persons  to  whom  such  compensation  was  paid  and  a 
statement  of  reasons  for  paying  such  amounts  to  such 
persons. 

Sec.  1004.  Whoever  violates  or  fails  to  comply  with 
any  requirement  of  the  preceding  section  shall  be  fined 
not  less  than  fifty  dollars,  nor  more  than  one  hundred 
dollars  for  the  first  offense,  and  not  less  than  two  hun- 
dred dollars  nor  more  than  five  hundred  dollars  for  each 
subsequent  offense. 

§  174.  Rules  of  procedure  before  the  state  liability 
boards  of  awards. — 


459  OHI°  ACT- 

RULE  1.— OFFICE  HOURS. 

The  office  hours  of  the  board  will  be  from  8:00 
o'clock  A.  M.  to  12 :00  o'clock  M. ;  and,  from  1 :30  o'clock 
P.  M.  to  4:30  o'clock  P.  M. 

RULE  2.— SESSIONS  OF  THE  BOARD. 
Sessions  of  the  board  will  be  held  regularly  at  the 
office  of  the  Board  on  the  sixth  floor  of  the  Hartman 
Building,  in  the  City  of  Columbus,  beginning  at  10:00 
A.  M.  of  each  business  day,  and  continuing  until  the 
business  of  the  day  is  completed;  provided,  that  sessions 
may  also  be  held  at  any  other  place  within  the  State 
should  the  business  to  be  transacted  seem  to  require  it. 

RULE  3.— FORMS  PRESCRIBED. 

Printed  forms  of  all  notices,  applications,  proofs,  cer- 
tificates, etc.,  necessary  for  perfecting  any  claim  before 
the  Board  will  be  furnished  free  of  charge  by  the  Board. 
Such  forms  must  be  used  in  all  cases. 

RULE  4.— INJURY  NOT  RESULTING  IN  DEATH,  NOTICE  OF. 

An  employe  who  has  been  injured  in  the  course  of 
his  employment  and  who  contemplates  filing  an  applica- 
tion for  an  award,  shall,  within  one  week  from  receiving 
such  injury,  notify  or  cause  notice  to  be  given  the  Board 
of  the  time,  place  and  nature  of  his  injury  and  the  name 
of  his  employer.  Forms  of  such  notices  can  be  obtained 
from  the  employer.  Such  notices  should  be  mailed  to 
"State  Liability  Board  of  Awards,  Columbus,  Ohio." 

Upon  receiving  such  notice  the  Board  forthwith  will 
mail  to  the  injured  employe  proper  forms  and  blanks  for 
his  use  in  perfecting  his  claim,  and  notify  the  employer 
thereof.  Unless  such  notice  is  given,  no  application  for 
an  award  will  be  considered  by  the  Board. 

RULE  5.— INJURY  RESULTING  IN  DEATH,  NOTICE  OF. 
When  death  results  from  an  injury  received  by  an  em- 
ploye in  the  course  of  his  employment,  the  provisions  of 
Rule  4  shall  apply,  except  that  notice  of  death  must  be 


§  174      WORKMEN'S  COMPENSATION  AND  INSURANCE.      460 

given  by  the  attending  physician,  undertaker,  employer, 
executor,  administrator  or  a  beneficiary,  within  one  week 
from  the  time  of  death. 

RULE  6.— DOCKETING  AND  NUMBERING. 

Notices  provided  for  by  Rule  4  and  5  shall  be  num- 
bered when  received  by  the  Board  and  entered  upon  a 
docket  kept  for  the  purpose,  and  each  paper  thereafter 
filed  in  connection  with  the  claim  shall  be  given  the  same 
number  as  the  original  notice. 

RULE  7.— APPLICATION  -  INJURY. 

Application  for  awards  in  all  cases  of  injury  not  re- 
sulting in  death  must  be  made  by  the  party  injured  not 
less  than  two  weeks  nor  more  than  three  months  after 
the  injury  is  received. 

RULE  8.— APPLICATION  -  DEATH. 

Application  for  awards  in  all  cases  of  injury  resulting 
in  death  must  be  made  by  the  executor,  administrator  or 
beneficiary  of  the  deceased,  or  by  the  attending  physi- 
cian or  undertaker  where  there  is  no  beneficiary,  not  less 
than  two  weeks  nor  more  than  six  months  after  the 
death  of  the  injured  employe. 

RULE  9.— MODIFICATION  OF  RULES. 

The  provisions  of  Rules  4,  5,  7  and  8  will  not  be 
relaxed  unless  in  the  judgment  of  the  Board,  the  failure 
to  observe  their  provisions  was  occasioned  by  want  of 
knowledge  of  their  existence,  and  unless  their  strict  en- 
forcement will  result  in  hardship  and  injustice.  In  such 
instances  the  Board  will,  upon  application,  extend  the 
time  for  filing. 

RULE  10.— PROOF. 

The  proof  of  all  claims  shall  be  made  by  affidavit  as 
far  as  possible.  But  the  Board  will,  if  in  its  judgment  it 
is  deemed  necessary,  require  medical  or  other  examina- 
tions, and  may  take  oral  testimony  of  witnesses,  the 
claimant  being  notified  of  the  time,  place  and  manner  of 
taking  the  same.  The  Board  will  also  hear  any  oral  tes- 


OHIO   ACT.  §  174 

timony  offered  by  an  applicant.  Depositions  of  witness- 
es may  also  be  filed  by  an  applicant,  but  notice  of  the 
time  and  place  of  taking  the  same  must  be  given  the 
Board  prior  to  their  taking.  Any  duly  authorized  in- 
spector of  the  Board  shall  have  the  right  at  any  time 
either  before  or  after  an  award  to  make  an  investigation 
as  to  the  cause  and  extent  of  the  injury  for  the  purpose 
of  ascertaining  facts.  The  proof  in  every  instance  shall 
be  such  as  to  show  clearly  the  jurisdiction  of  the  Board, 
the  rights  of  the  applicant  to  an  award,  and  the  amount 
thereof. 

RULE  11.— DUTY  OF  CLERK. 

The  clerk  shall  keep  a  record  of  the  time  or  filing  all 
notices,  applications,  affidavits,  statements,  depositions, 
medical  and  other  forms  of  proof,  and  when  the  proof 
is  seemingly  complete,  shall  enter  the  same  in  the  order 
of  the  completion  of  the  proof  upon  a  separate  record  to 
be  known  as  the  "Hearing  Docket." 

RULE   12.— HEARINGS. 

Applications  for  awards  will  be  set  for  hearing  in  the* 
order  in  which  they  appear  on  the  "Hearing  Docket."  It 
shall  be  the  duty  of  the  Clerk  to  make  an  assignment  of 
applications,  for  hearing  for  each  business  day  one  week 
in  advance,  and  forthwith  to  notify  the  applicant  by 
postal  card  of  the  time  of  the  hearing.  Applicants  may 
appear  before  the  Board  either  in  person  or  by  agent 
or  attorney.  If  no  appearance  is  made,  the  application 
will  be  heard  and  disposed  of  upon  the  proofs  on  file,  if 
sufficient,  or  may  be  continued  until  a  future  day,  or  in- 
definitely, for  the  attendance  of  applicant  or  counsel,  or 
for  the  furnishing  of  further  proof. 

RULE  13.— AWARDS. 

All  awards,  other  than  for  medical,  nurse  and  hospi- 
tal services  and  for  funeral  expenses,  will  be  payable  in 
bi-weekly  installments.  In  case  of  temporary  disability 
or  partial  impairment  of  earning  capacity,  the  Board,  at 
the  time  of  making  the  award,  will  fix  a  time  at  which 


§  174      WORKMEN'S  COMPENSATION  AND  INSURANCE.      462 

payments  shall  cease,  unless  the  injured  employe  shall 
make  it  appear  to  the  Board  that  he  is  still  incapacitated 
as  a  result  of  the  injury  for  which  the  award  was  orig- 
inally made.  In  such  case  a  modification  of  the  terms 
of  the  original  award  may  be  made. 

RULE  14.— PAYMENT  OF  LUMP  SUMS. 

Payment  of  awards  in  lump  sums  will  be  made  only 
when,  in  a  supplemental  proceeding,  it  is  made  to  appear 
to  the  Board  that  it  would  be  to  the  mutual  advantage 
of  the  applicant  or  beneficiaries  and  to  the  State  Insur- 
ance Fund. 

RULE  15.— CONTINUANCE. 

The  policy  of  the  Board  will  be  to  determine  all  ques- 
tions brought  before  it  as  speedily  as  possible ;  but  con- 
tinuances of  hearings  for  any  reasonable  cause  may  be 
had  upon  the  request  of  the  applicant. 

The  Board  will  continue  hearings  on  its  own  motion 
only  when  the  volume  of  business  is  such  as  to  demand 
it,  or  when  the  proof  is  not  satisfactory,  or  is  insufficient. 
RULE  16.— MODIFICATION  OF  AWARDS. 

The  Board,  having  continuing  power  and  jurisdiction 
over  an  award,  may  make  changes  or  modifications  of  its 
former  findings,  either  upon  its  own  motion  or  upon  the 
application  of  the  beneficiary  or  beneficiaries.  If  on  its 
own  motion,  it  must  first  notify  the  beneficiary  or  bene- 
ficiaries. Upon  application  being  made  for  a  modifica- 
tion of  an  award,  it  shall  be  docketed  and  set  for  hearing 
as  in  the  case  of  original  applications. 

RULE  17.— CHANGES  IN  RULES. 

The  rules  of  the  board  are  subject  to  alterations  or 
amendments  at  any  time ;  and  the  board  will  make  addi- 
tional rules,  whenever,  in  its  judgment,  the  same  are  nec- 
essary. 

§  175.  Procedure  as  to  employers. — The  steps  re- 
quired to  be  taken  by  every  employer  of  five  of  more 
workmen  or  operatives  regularly  in  the  same  business 


463  OHIO    ACT.  §  176 

in  the  State  of  Ohio  to  obtain  the  immunities  and  bene- 
fits and  avoid  the  penalties  of  the  act  are  the  following: 

First.  He  should  carefully  read  the  rules  of  pro- 
cedure before  the  State  Liability  Board  of  Awards  which 
have  been  prepared  by  the  Board  for  the  guidance  of 
employers  and  employes  affected  by  the  act  and  notify 
the  Board  that  he  desires  to  insure  under  the  act. 

Second.  He  should  fill  out  the  application  for  classi- 
fication of  industry  and  for  premiums  and  the  report  as 
to  number  of  accidents  and  pay  roll  and  send  the  same 
to  the  State  Liability  Board  of  Awards  at  Columbus. 
These  forms  are  set  out  in  sections  177  and  178. 

Third.  He  should  promptly  receive  in  return  the 
premium  rate  fixed  by  the  Liability  Board  according  to 
the  resolution  in  note  under  section  17  of  the  Compensa- 
tion Act. 

Fourth.  He  should  then  pay  the  premium  fixed  by 
the  Board  and  post  a  copy  of  the  "notice  to  employes" 
set  out  in  section  179. 

§  176.  Forms  of  applications  and  notices  to  be  used 
by  employers  covered  by  the  act. — Conformably  to  sec- 
tion 8  of  the  act  the  State  Liability  Board  of  Awards  has 
prescribed  the  forms  to  be  filled  out  by  the  employer  to 
avail  himself  of  the  provision  of  the  act  and  likewise  the 
notice  to  be  posted  by  an  employer  who  has  paid  the 
premiums.  These  forms  are  set  out  in  the  three  suc- 
ceeding sections. 

§  177.  Form  of  application  for  classification  of  in- 
dustry and  for  premium. 

State  Liability  Board  of  Awards, 

Columbus,  Ohio. 
The   undersigned,   

(Individual,  firm,  partnership  or  corporation) 

an  employer  of  labor  in  Ohio,  and  authorized  to  do  business  in  this 
State,  hereby  makes  the  following  declaration  for  the  purpose  of 
enabling  the  State  Liability  Board  of  Awards  to  determine  the 
classification  or  classifications  of  employments  in  the  business 
conducted  by  said  undersigned,  and  to  fix  the  rate  or  rates  of  pre- 


§  177     WORKMEN'S  COMPENSATION  AND  INSURANCE.      464 

mium  therefor,  and  to  name  the  aggregate  amount  of  premium  to 
be  paid  to  the  Treasurer  of  the  State  of  Ohio  as  custodian  of  THE 
STATE  INSURANCE  FUND. 

It  is  understood  by  said  employer  that  if  he  elects  to  accept  the 
provisions  of  the  act  creating  said  State  Insurance  Fund  and  to 
pay  the  premium  quoted  to  him  by  said  State  Liability  Board  of 
Awards  upon  the  basis  of  this  declaration,  that  this  declaration  in 
its  entirety  shall,  upon  said  election  by  said  employer,  become  and 
constitute  his  application  for  the  rights  and  benefits  of  said  fund. 
It  is  further  understood  that  the  declarations  herein  contained  are 
made  only  for  the  purpose  of  enabling  the  Board  to  quote  a  correct 
premium  rate. 

1    Name  of  applicant 

Address    

(City,  street  number,  etc.,  where  principal  office  is  located) 
2 


SO) 

•0 

x»               ' 

1 

^ 
u  < 

9 

o   d 

o 

4-1 

(^  5 

05      >> 
DO      O 

a  a 

o    >> 

0      OB 

QJ     f—  < 

H    o 

K  5 

•<   a 

•sl-g 

d     03     O 

•S   g 
§  H 

d 

°  M 

«  a  § 

a 

o  a 

fc  H 

11 

-2  33 
3 

I 

d  Q  a 
2 

80     •<H 

H 

3  The  following  is  a  correct  statement  of  the  average  number 
of  employe's  employed,  and  the  total  pay-roll  of  the  undersigned 
for  the  twelve  months  constituting  the  business  year  last  preced- 
ing this  application,  ending ,  191__ 


00 

OJ 

•a 

.2 

0) 

d 

w 

^ 

B 

t-5 

09 

Pk 

in 

00 

h| 

VI) 

*!>•» 

I 

_o 

_© 

"d 

^] 

_0 

_d 

"3. 

0) 

Location  of  A 

"3. 

a 

H 

o> 
C 

Q) 

Employed. 

o 

n 

*o 

• 

1 

5 

Different  Em 

ments. 

a 

K 

O 

S5 

Each  Employm 

i 

i 

4^5  t  OHIO   ACT.  §  177 

4  The  foregoing  enumeration  of  employes  includes  all  "work- 
men or  operatives  regularly  employed  in  the  same  business,  or  in 
or  about  the  same  establishment,"  in  the  service  of  the  under- 
signed in  connection  with  the  operation  herein  described  to  whom 
compensation  of  any  nature  is  paid  or  allowed.    The  officers  of  a 
corporation,   as  such,  and  persons  wholly  engaged   as  traveling 
salesmen,  are  not  included.     The  members  of  the  STATE  LIA- 
BILITY BOARD  OP  AWARDS,  or  any  of  its  duly  authorized  em- 
ploye's,  shall  be  permitted  to  examine  the  books  of  the  under- 
signed at  any  time,  so  far  as  they  relate  to  the  number  or  names 
of  workmen  or  operatives  regularly  employed,  and  the  compen- 
sation earned  by  them,  as  above  certified  and  estimated. 

5  There  are  no  hand-fed  machines  used  for  stamping,  punching, 
pressing,  cutting  or  embossing  metal,  except  as  herein  stated: 

6  There  is  no  stevedoring  of  raw  material  or  supplies — except 
as  herein  stated:    

7  No  railroads,   switches,  or  sidetracks,  other  than  by  hand- 
power  are  operated — except  as  herein  stated: 

8  No  explosives  are  used,  except  as  herein  stated: 


9  No  operations  of  any  nature  not  herein  disclosed  are  con- 
ducted by  the  undersigned  at  the  places  covered  hereby — except 
as  herein   stated: 

10  The  buildings  and  structures  in  which  the  business  of  the 
undersigned  is  carried  on  are  as  follows: 

(State  number,  size,  and  whether  frame,  brick,  stone  or  concrete.) 


There  are boilers.     Their  type  is. 


Their  age  is 

There  are passenger  elevators  and freight  elevators. 

Their  type  is 

Their  maker's   name   is 

11  The  foregoing  statements  are  true  and  are  made  with  the 
understanding  that  should  the  classification  or  classifications, 
rate  or  rates  and  the  aggregate  amount  of  premium  fixed  by  the 
STATE  LIABILITY  BOARD  OF  AWARDS  under  this  application 
be  satisfactory  to  the  undersigned  when  advised  of  the  same,  the 
30— BOYD  w  c 


§  177.     WORKMEN'S  COMPENSATION  AND  INSURANCE.     466 

undersigned  shall  then  have  the  option  of  election  to  accept  the 
provisions  of  an  Act  of  the  General  Assembly  of  Ohio,  entitled 
"An  Act  to  create  a  state  insurance  fund  for  the  benefit  of  injured, 
and  the  dependents  of  killed  employe's,  and  to  provide  for  the 
administration  of  such  fund  by  a  state  liability  board  of  awards," 
passed  May  31, 1911,  and  approved  by  the  Governor,  June  15,  1911. 
Said  option  so  to  elect,  if  exercised,  will  be  exercised  by  the 
payment  to  the  TREASURER  OF  STATE,  as  custodian  of  the 
STATE  INSURANCE  FUND  OF  OHIO,  at  his  office  in  the  City  of 
Columbus,  Ohio,  of  the  sum  so  designated  by  the  STATE  LIA- 
BILITY BOARDS  OF  AWARDS,  and  such  election  will  date  from 
the  first  following  week-day  not  a  holiday  after  the  day  on  which 
such  payment  is  actually  received  by  the  Treasurer  of  State. 
12  The  statements  herein  are  also  made  with  the  understanding 
that  if  the  pay-roll  of  the  undersigned  be  greater  for  the  ensuing 
six  months  than  the  estimate  herein  made,  that  the  premium  shall 
be  proportionately  increased,  and  shall  be  due  and  payable  in  the 
same  manner  as  the  original  payment,  at  the  end  of  the  six 
months'  period;  and,  if  the  pay-roll  for  such  period  be  less  than 
herein  estimated,  a  proportionate  reduction  will  be  made,  a  credit 
for  the  amount  of  which  will  be  allowed  to  the  undersigned  upon 
the  premium  for  the  six  months'  period  next  ensuing. 

In  witness  whereof have  hereunto  subscribed 

(I  or  we) 
name and  caused  our  official  seal  to  be  affixed, 

(my  or  our)  (If  a  corporation) 

this__  —day  of__.  .,  191— 


Witness : 


(Seal) 


State  of  Ohio, County,  ss: 

On  this day  of ,  191—,  before  me,  a 

in  and  for  said  county  appeared  personally 

and   

who,  being  first  duly  sworn,  declared  that  the  facts  set  forth  in  the 
foregoing  application  are  true. 


(My  commission  expires ) 

(If  the  employer  is  a  corporation,  signature  should  be  made 
and  seal  used  according  to  the  laws  of  Ohio,  and  the  official  taking 


467 


OHIO   ACT. 


§177 


this  acknowledgment  is  cautioned  to  see  that  it  is  properly  taken. 
Do  not  omit  official  titles  of  affiants  if  corporation.) 


Office   of 

STATE  LIABILITY  BOARD  OF  AWARDS, 
Columbus,    Ohio. 


Using  the  information  contained  in  the  foregoing  application,  as 
a  basis,  the  STATE  LIABILITY  BOARD  OF  AWARDS  has  classified 
the  employment  or  employments  of , 

of ,  as  follows: 


to 

<M 

**  ta 

>»••-•    g 

o 

a 

>»     o> 
O      rt 

Oj     C/2     r« 
PL|               W 

w 

si  1 

*»  ^a 

o 
o 

n  "3 

3 

MI  g  o 

2  H    o, 

3  |  is 

Q 

O 

^ 

*{ 

>  «  a 

<J    o  H 

^        a 

•» 

"o 

H 

o  "a 

111 

ijil 

o> 
a  g 

ho 

"rt 

Go 

V 

§   o 

tfl   *^-     d 

S  "o    o    o 

S3  •  «  a  "5 

03      r^ 

1  ^ 

i 

hO 

"3 

-4-J 

o 

P 

i 

w 

P5 

Accordingly,  on  this day  of ,  191__, 

a  PAY-IN  ORDER  has  been  mailed  to  said  applicant  and  said  PAY- 
IN  ORDER  will  be  the   authority  for  the   Treasurer  of   State   to 

receive  the  sum  of  $ from  said  APPLICANT,  and  to 

place  the  same  to  the  credit  of  the  State  Insurance  Fund  of  Ohio. 
STATE  LIABILITY  BOARD  OF  AWARDS, 

T.  J.  DUFFY, 
MORRIS  WOODHULL, 

WALLACE  D.  YAPLE. 

(Seal.) 

Attest: 


Chief  Auditor. 


Attest: 


Actuary. 


§  178      WORKMEN'S  COMPENSATION  AND  INSURANCE.      468 

§  178.     Form    of   supplementary    report — Accident 
experience.5 

Table  of  Number  of  Accidents  and  of  Pay-Roil |In'09|In'10|In'll 


o 

O 

O 

-*J 

0 

^* 

rH 

•*-* 

C9 

05 

rH 

O 

rH 

rH 

r— 

0 

03 

1—  1 

05 

i—  i 

A 

' 

O5 

TH 

iH 

05 

(H 

^H 

A 

i>4 

T- 

r-T 

rH 
^ 

T^ 

r^ 
^? 

TH 

H 

£* 

— 

Is 

,>;> 

" 

£3 

i—  ^ 

3 

1-5 

S 

^ 

1-5 

1-3 

1-3 

Table  of  Number  of  Accidents  and  of  Pay  Roll — 
Total  number  of  all  accidents  happening   (to  in- 
clude only  those  cases  causing  a  disability  of  one 

or  more  days), 

Number  of  accidents  causing  death 

Number    of    accidents    causing    disability    lasting 

more  than  four  weeks 

Total  amount  of  pay  rool 


1$        1$ 


Employer's   Name Address. 


§  179.    Form  of  notice  of  employer  to  employes: 

NOTICE  TO  EMPLOYES. 

All  workmen  or  operatives  employed  in  or  about  this  estab- 
lishment are  hereby  notified  that  the  employer  or  employers  owning 
or  operating  the  same  have  paid  into  The  State  Insurance  Fund 
according  to  the  laws  of  Ohio  the  premiums  provided  by  the  act 
creating  the  State  Liability  Board  of  Awards  to  administer  said 
fund.  (Act  of  May  31,  1911,  Ohio  Laws,  Vol.  102,  page  524.) 

RULE  4.— INJURY  NOT  RESULTING  IN  DEATH,  NOTICE  OF. 

An.  employe  who  has  been  injured  in  the  course  of  his  employ- 
ment and  who  contemplates  filing  an  application  for  an  award,  shall, 
within  one  week  from  receiving  such  injury,  notify  or  cause  notice 
to  be  given  the  Board  of  the  time,  place  and  nature  of  his  injury 
and  the  name  of  his  employer.  Forms  of  such  notices  can  be 
obtained  from  the  employer.  Such  notices  should  be  mailed  to 
"State  Liability  Board  of  Awards,  Columbus,  Ohio." 

Upon  receiving  such  notice  the  Board  forthwith  will  mail  to  the 
injured  employ^  proper  forms  and  blanks  for  his  use  in  perfecting 


5  It  is  absolutely  essential  that  the  employer  furnish  the  infor- 
mation desired  on  this  sheet.  This  is  very  IMPORTANT  and  WILL 
AFFECT  THE  RATE  which  will  be  quoted. 


OHIO    ACT.  §  1 80 

his  claim,  and  notify  the  employer  thereof.     Unless  such  notice  is 
given,  no  application  for  an  award  will  be  considered  by  the  Board. 

RULE  5.— INJURY  RESULTING  IN  DEATH,  NOTICE  OF. 
When  death  results  from  an  injury  received  by  an  employ^  in 
the  course  of  his  employment,  the  provisions  of  Rule  4  shall  apply, 
except  that  notice  of  death  must  be  given  by  the  attending  physi- 
cian, undertaker,  employer,  executor,  administrator,  or  a  beneficiary, 
within  one  week  from  the  time  of  death. 

RULE    7.— APPLICATION-INJURY. 

Application  for  awards  in  all  cases  of  injury  not  resulting  in 
death  must  be  made  by  the  party  injured  not  less  than  two  weeks 
nor  more  than  three  months  after  the  injury  is  received. 

RULE    8.— APPLICATION-DEATH. 

Application  for  awards  in  all  cases  of  injury  resulting  in  death 
must  be  made  by  the  executor,  administrator  or  beneficiary  of  the 
deceased,  or  by  the  attending  physician  or  undertaker  where  there 
is  no  beneficiary,  not  less  than  two  weeks  nor  more  than  six  months 
after  death  of  the  injured  employe. 
Date Employer. 

§  180.  A  comparison  of  premium  rates  under  the 
Ohio  law  with  liability  insurance  rates  under  compensa- 
tion laws. 

The  economies  effected  by  the  Ohio  method  are 
shown  by  the  subjoined  table  which  sets  out  the  rates 
imposed  by  the  Board  in  forty  different  employments, 
and  the  rates  paid  to  liability  insurance  companies  in  the 
states  of  New  Jersey,  Illinois  and  Wisconsin  under  their 
compensation  acts.  Under  the  Ohio  act  the  employer 
engaged  in  the  manufacture  of  confectionery  is  insured 
against  liability  for  personal  injuries  by  the  payment  of 
1 70  cents  on  each  one  hundred  dollars  of  his  pay  roll. 
This  protection  will  cost  him  $1.50  under  the  compensa- 
tion act  of  New  Jersey,  two  dollars  under  the  Illinois 
law  and  $2.10  under  the  Wisconsin  statute.  In  the  latter 
state  the  non-electing  employer  covered  by  the  act  will 
pay  75  cents,  but  he  is  denied  the  defenses  of  contribu- 
tory negligence  and  assumption  of  risk.  The  compari- 
son as  to  other  employments  is  shown  in  the  following 

* 


§  i8o     WORKMEN'S  COMPENSATION  AND  INSURANCE.      470 

table  which  covers  87  per  cent,  of  all  employers  covered 
by  the  act.6 

A  TABLE  OF  COMPARATIVE  RATES. 
Compiler!  by  Emile  E.  Watson,  Actuary  of  the  Board. 


fc  o 


Representative  Employments 


ll 

S  J? 

£o 

o 
|| 

oi3 

II 

Confectionery    Mfrs.     

$0.70 

$1.50 

$2.00 

$0.75 

$2.10 

Acid    Mfrs.    

1.20 

3.00 

4.05 

1.65 

4.20 

Car    Mfrs.,     R.     R  

1.85 

3.50 

4.70 

2.40 

4.90 

Coal     Miners     

1.80 

6.00 

15.00 

3.00 

8.40 

Carpenter    Contractors    

3.05 

3.75 

4.50 

3.00 

5.25 

Mason    Contractors     

3.90 

5.25 

6.30 

4.20 

7.35 

Electric    Light    &    Power   Cos  

4.15 

6.00 

7.20 

4.80 

8.40 

Harness    and    Saddle    Mfrs.  

.85 

1.25 

1.65 

.55 

1.75 

Saw     Mills     

2.20 

4.50 

5.60 

2.25 

6.30 

Planing    Mill    &    Lumber    Yard  

1.60 

3.25 

4.05 

1.50 

4.55 

Meat   Packing   &   Stock    Yards  

1.40 

2.25 

3.35 

1.50 

3.50 

Machine    Shops    

.85 

2.00 

2.50 

1.00 

2.80 

Machine    Shops,    with    foundry  

.95 

2.50 

3.10 

1.20 

3.50 

Foundry    (iron)    

1.25 

2.75 

3.40 

1.50 

3.85 

Boilermakers     

1.95 

3.50 

4.25 

2.25 

4.90 

Flour     Mills     

1.20 

2.00 

2.70 

1.20 

2.80 

Mining    (except    coal)    clay  

1.80 

6.00 

8.10 

4.00 

8.40 

Ice    (Artificial)    Mfrs.    

1.20 

2.50 

3.35 

1.35 

3.50 

3  05 

8  00 

10  80 

6  25 

11  20 

«*'      R              TT1        t    1                tit       'K 

2  15 

6  75 

3  75 

7  00 

Oil    (fish,    lard,    tallow)    Mfrs  

1.10 

2.25 

3.00 

1.05 

3.15 

Blast    furnaces    

2.65 

6.00 

8.10 

3.75 

8.40 

Iron    Smelters     

2.65 

6.00 

8.10 

3.75 

8.40 

Paper  Mfrs.    (No  saw  or  bark  mills  — 

1.55 

2.50 

3.35 

1.50 

3.50 

Card   Board   Mfrs.    (No   pulp   mills)  — 

1.15 

2.00 

2.70 

1.20 

2.80 

Writing    Paper    Mfrs.    

1.20 

1.25 

1.65 

1.20 

1.75 

Glass  Mfrs.    (No  plate  or   window)  — 

.45 

1.25 

1.65 

.30 

1.75 

Printers     

.85 

1.25 

1.55 

.60 

1.75 

Rubber    Mfrs.     

1.00 

2.25 

3.00 

.63 

3.15 

Freight     Handlers  —  Stevedore     

2.20 

4.00 

8.00 

3.00 

5.60 

Lime        Quarries  —  Inc.        Blasting, 

Crushing     

3.30 

6.00 

8.10 

3.50 

7.00 

2  80 

4  05 

5  40 

3  13 

5  60 

Clothing    Mfrs.    

.35 

.60 

.75 

.27 

.84 

Mattress   Mfrs.    (No   spring   or   wire) 

.50 

1.50 

1.85 

.73 

2.10 

Tobacco    Mfrs.  —  Chewing    smoking    — 

.50 

.75 

1.00 

.32 

1.05 

Great    Lakes    Steamers    

1.90 

3.00 

1.80 

1.35 

3.50 

Scrap  Iron  Dealers   (Shops  or  Yard). 

3.80 

6.00 

8.10 

4.20 

8.40 

Storage     (Cold-grain)     - 

2.05 

2.50 

3.38 

1.75 

3.50 

Furniture     Mfrs.     

1.00 

2.00 

2.50 

.80 

2.80 

Wood    Turners     

1.00 

2.25 

2.80 

.96 

3.15 

Totals     $69.10 

$131.85 

$180.23 

$83.08 

$182.84 

Ratio     

1. 

1.9 

2.6 

1.2 

2.6 

6  The  State  Liability  Board  of  Awards  in  an  authorized  circular 
says: 

The  Ohio  State  Compensation  Rates  are  the  lowest  rates  in 
existence  covering  the  protection  afforded  by  the  law. 

All  other  states  and  all  private  companies,  and  some,  even  for 
less  protection  (one-half  wages  indemnity  instead  of  two-thirds 
wages  indemnity),  charge  rates  from  40%  to  250%  higher. 

The  reason  is  that  Ohio  handles  her  own  Insurance  Fund  and 
provides  Insurance  at  Cost. 


47 1  OHIO  ACT.  §  181 

§  181.     Procedure    as    to    injured    employes. — The 

State  Liability  Board  of  Awards  in  devising  the  proce- 
dure to  be  followed  by  workmen  who  are  covered  by  the 
act  and  who  are  injured  in  the  due  course  of  their  em- 
ployment, or  by  their  dependents  in  case  they  are  killed, 
have  divided  the  various  claims  that  such  workmen  or 
their  dependents  might  have  for  compensations  into  five 
groups,  as  follows : 

I.  Claims  for  compensation  for  injury  not  resulting 
in  death  and  which  does  not  incapacitate  the  worker  for 
more  than  seven  days ; 

II.  Claims  for  compensation  in  case  of  temporary 
partial  disability,  temporary  total  disability,  or  perma- 
nent partial  disability; 

III.  Claims  for  compensation  in  cases  of  permanent 
total  disability; 

IV.  Claims  for  compensation  in  cases  of  death  with- 
out dependents; 

V.  Claims  for  compensation  in  cases  of  death  with 
dependents. 

The  Board  has  devised  specific  blank  forms  for  each 
class  to  be  filed  by  those  making  claims  which  fall  in  the 
five  foregoing  groups  of  claims.  These  forms  are 
grouped  together  according  as  the  claim  falls  in  the  sepa- 
rate groups,  and  are  given  in  the  succeeding  sections  in 
the  above  named  order. 

§  182.  Form  of  procedure  on  notices  in  general. — 
As  soon  as  the  check  of  the  employer  to  pay  the 
premium  prescribed  in  section  17  of  the  Ohio  act  is  re- 
ceived by  the  State  Treasurer,  the  State  Liability  Board 
of  Awards  sends  him  the  following: 

First,  a  notice  by  card  that  he  is  under  the  protection 
of  the  State  insurance  plan; 

Second,  the  blank  forms:  (a)  first  notice  of  injury 
(filled  out  by  injured  person) ;  (b)  first  notice  of  death 


§  183      WORKMEN'S  COMPENSATION  AND  INSURANCE.      472 

(filled  out  by  physician,  undertaker,  administrator,  or 
beneficiary). 

These  forms  of  notices  are  given  in  the  following 
sections  in  the  order  named. 

§  183.    Form  of  first  notice  of  injury.     (a)ea 

STATE  LIABILITY  BOARD  OF  AWARDS, 

COLUMBUS,  OHIO. 

1.  Name  of  injured  person 

Address  

(Street  and  Number.)                (Post  Office.) 
Sex Nationality Speak  English? 

2.  Name  of  employer 

Office  address  

(Street  and  Number.)                 (Post  Office.) 
Nature  of  business 

3.  Date  of  accident Hour  of  day M. 

4.  Exact  location  of  place  where  accident  happened? 

5.  How  did  accident  happen? 

6.  State  fully  nature  of  injury 


7.  Is  injured  person  able  to  work? If  not  when  will 

injured  person  be  able  to  return  to  work?    Probably  in 

weeks, days.    (It  is  important  that  a  careful  answer 

be  given.) 

8.  Will  injured  person  be  able  to  take  up  regular  employment 
when  he  does  return  to  work? If  not,  why? 

9.  Name  of  attending  physician Address 

10.     If  taken  to  hospital,  give  name  and  address  of  hospital 


Name  of  injured  person  making  this  report. 


6a  This  form  must  be  filled  out  and  mailed  to  the  "State  Liability 
Board  of  Awards,  Columbus,  Ohio,"  within  one  week  after  date  of 
injury.  See  Rule  4  of  said  Board. 


473  OHI°  ACT-  §  184 

§  184.     Form  of  first  notice  of  death,     (b)7 

STATE  LIABILITY  BOARD  OF  AWARDS, 

COLUMBUS,  OHIO. 

1.  Name  of  deceased  person 

Who  resided  at 

(Street  and  Number.)                      (Post  Office.) 
Sex Nationality Speak  English? 

2.  Name  of  employer 

Office  address 

(Street  and  Number.)                     (Post  Office.) 
Nature  of  business 

3.  Date  of  accident Hour  of  day M. 

4.  Exact  location  of  place  where  accident  happened? 

5.  How  did  accident  happen? 

6.  State  fully  nature  of  injury  which  caused  death  of  deceased 


7.  Give  date  of  death ,    Hour  of  day M. 

8.  Name  of  attending  physician Address 

9.  Did  deceased  have  any  one  dependent  upon  him  for  support, 
either  wholly  or  partially? 

Name  of  person  making  this  report. 


GROUP  I. 

FORMS   WHERE   EMPLOYE   IS   INCAPACITATED   NOT  TO  EX- 
CEED SEVEN  DAYS. 

§  185.  Formal  procedure  for  procuring  medical, 
nurse,  and  hospital  services  and  medicines,  without 
compensation. 

A  workman  who  is  covered  by  the  act  and  whose  in- 
jury does  not  incapacitate  him  for  a  period  longer  than 
seven  days,  is  entitled  to  compensation  from  the  state 
insurance  fund  for  medical,  nurse  and  hospital  services 
and  medicines  in  such  amounts  as  the  Board  of  Awards 


7  Person  making  this  report  should  state,  on  line  below 
signature,  whether  he  or  she  is  the  attending  physician,  undertaker, 
employer,  executor,  administrator  or  a  beneficiary. 


§  186      WORKMEN'S  COMPENSATION  AND  INSURANCE.      474 

may  deem  proper,  not,  however,  in  any  case  to  exceed 
the  sum  of  two  hundred  dollars.  (See  §§  23,  24  and  25 
of  the  act.) 

In  cases  of  this  character  the  application,  notices  and 
forms  which  the  board  requires  to  be  filled  out  are  re- 
spectively: (a)  application  for  money  to  pay  medical, 
nurse  and  hospital  services  and  medicines;  (b)  form  for 
physicians  fee  bill;  (c)  form  for  druggists  cost  bill;  (d) 
form  for  employers  certificate  and  oath;  (e)  certificate 
and  oath  of  lay  witness.  The  acknowledging  officer  is 
charged  with  the  duty  to  see  that  the  blanks  are  filled 
and  the  acknowledgment  properly  taken. 

§  186.  Form  of  application  for  money  to  pay  for 
medical,  nurse  and  hospital  services  and  medicines,  with- 
out compensation.  (a)7a 

State  Liability  Board  of  Awards,  Columbus,  Ohio. 

I,  ,  of 

(Name  of  Applicant)  (Post  Office) 

,  County  of ,  State  of  Ohio, 

(Street  and  Number) 

do  hereby  make  application  for  money  to  pay  for  medical,  nurse 

and  hospital  services  and  medicines  for  injuries  received  while  in 

the  employ  of ,  whose  plant  is  situated  at , 

County  of ,  State  of  Ohio. 


?aAll  the  questions  In  this  blank  form  must  be  answered,  or  if 
any  question  can  not  be  answered,  reason  for  not  answering  must 
be  given.  This  requirement  must  be  complied  with.  Otherwise,  the 
blank  will  be  returned  for  correction.  While  all  the  information 
asked  for  may  not  be  necessary  to  make  up  full  proof  in  every 
instance,  yet  it  is  necessary  for  other  requirements  of  this  depart- 
ment. 

Fill  out  blank  in  ink,  using  pen  or  typewriter. 

Applications  for  awards  in  all  cases  of  injury  not  resulting  in 
death  must  be  made  by  the  party  injured  NOT  LESS  THAN  TWO 
WEEKS  NOR  MORE  THAN  THREE  MONTHS  after  the  injury  is 
received. 


475  OHI°  ACT- 

I  have  incurred  for  said  services  and  medicines  for  treatment 
for  the  injury  herein  described  the  following  bills: 

Date  To  Whom  Item  Amount    Bills  Paid 

Paid  or  Due.  (Yes  or  No) 


I  enclose  herewith  all  of  the  above  bills  properly  made  out, 
sworn  to,  and,  if  paid,  properly  receipted. 
1.    Age? Sex? Color? Place  of  birth? 

Married,  single  or  divorced? Wife  living? 

Parent  or  guardian,  if  minor? 

How  many  children  living? Their  ages? 

Which  of  them  are  dependent  upon  you  for  support? 

To  what  degree  is  each  dependent? 


2.  What  weekly  wage  were  you  receiving  at  time  of  injury? 

3.  How  long  had  you  been  receiving  such  wages? 

4.  •  What  work  were  you  engaged  in  when  injured? 

5.  How  long  had  you  been  doing  this  work? 

6.  Was  this  your  regular  employment? 1.  If  not, 

what  was  your  regular  employment? 8.  When 

did  you  enter  employ  of  present  employer? 

9.    With  whom  were  you  employed  previous  to  this? 

10.  How  long? 11.  Were  you  skill- 
ful in  the  labor  being  performed  when  the  injury  happened? 

12.     Describe    the    injury 


13.  Where  did  you  go  after  accident? 

14.  When  did  you  return  to  work?.! 15.  How  many 

days  were  you  disabled? 16.  Did  you  return  to 

work  as  soon  as  you  were  able? 

17.  Name  of  attending  physician Address 

18.  Date  of  accident 19.  Hour  of  day , M. 

20.    State  clearly  the  manner  in  which  you  were  injured 


21.  Was  accident  caused  by  fault  of  fellow- workman? 

22.  Did  the  accident  happen  on  the  premises,  or  away  from  the 
plant  of  your   employer? 


§  187      WORKMEN'S  COMPENSATION  AND  INSURANCE.      476 

23.     If  away  from  the  plant,  state  where,  how  and  by  whom  injured 


24.  "Were  you  acting  under  the  direction  of  a  foreman? 

Were  you  obeying  orders? 

25.  Was  accident  caused  by  fault  of  machines  or  devices? 

26.  Name  of  machine,  device,  etc.,  causing  accident 

27.  Describe  fully  its  condition 

28.  Were  all  safeguards  in  their  places  at  time  you  were  hurt? 

29.  If  any  safeguard  was  removed,  did  you  remove  it  or  was  it 
removed  by  any  of  your  fellow  workmen,  or  superintendent  or 
foreman?    

30.  Name  of  manager  of  said  plant Address 

31.  Name  of  foreman  or  superintendent  in  charge  of  department  in 
which  I  was  injured Address 

32.  Names  of  three  witnesses  who  witnessed  the  accident: 

Name Address 

Name Address 

Name Address 

I  Witness:   (Signed)    

Applicant. ' 
OATH. 

State  of  Ohio, County,  ss: 

Before  me, ,  a  notary  public  in  and  for  said  county, 

on  this day  of ,  191__,  personally  appeared , 

the  above  named  applicant,  who,  first  being  duly  sworn,  declared 
that  the  facts  set  forth  in  the  foregoing  application  are  true. 

(Seal)  

Notary  Public. 
My  commission  expires 

§  187.     Form  of  physician's  fee  bill,  (b) 

The  following  is  an  itemized  account  of  professional  services 

rendered  in  connection  with  the  treatment  of  injury  to 

j  (Name  of  patient.) 

of together  with  charges  therefor: 

(Full  address  of  patient.) 

Date.  Items.  Amount. 


(Items  should  be  written  out  fully.     Do  not  abbreviate.) 

.    (Signature  of  Affiant.) 


477  OHIO  ACT.  §  188 

OATH. 
State  of  Ohio, County,  ss: 

,  being  first  duly  cautioned  and  sworn,  says 

that  he  treated  the  injury  to  the  above  named  person  and  that  his 
services  were  required  and  furnished  on  account  of  the  purposes 
above  mentioned,  and  the  same  were  necessary  therefor,  and  that 
the  charges  are  reasonable  and  not  more  than  he  charges  for  like 
services  in  other  instances. 

Sworn  to  before  me  and  subscribed  in  my  presence,  this 

day  of ,  191__ 

(Seal.)  Notary  Public. 

My  commission  expires 

§  188.     Form  of  druggist's  cost  bill,  (c) 

The  following  is  an  itemized  account  of  medicines  furnished  and 
services  rendered  in  connection  with  the  treatment  of  injury   to 

,  of ,  together  with  charges 

(Name  of  patient.)         (Full  address  of  patient.) 
therefor: 

Date.  Items.  Amount. 

.  \ 


(Items  should  be  written  out  fully.     Do  not  abbreviate.) 

(Signature  of  Affiant.) 

OATH. 
State  of  Ohio, County,  ss: 

,  being  first  duly  cautioned  and  sworn,  says 

that  the  above  articles  or  services  were  required  and  furnished  on 
account  of  the  purpose  above  mentioned,  and  the  same  were  neces- 
sary therefor,  and  that  the  charges  are  reasonable  and  not  more  than 
he  charges  for  like  services  in  other  instances. 

Sworn  to  before  me  and  subscribed  in  my  presence,  this 

day  of ,  191 

Notary  Public. 

(Seal.)  My  commission  expires 

§  189.     Form  of  employer's  certificate  and  oath,  (d)8 

State  Liability  Board  of  Awards,  Columbus,  Ohio. 

1.  Name  of  employer Address  

2.  Nature  of  business  _ 


8  All  the  questions  in  this  blank  form  must  be  answered,  or  if 
any  question  can  not  be  answered,  reason  for  not  answering  must 
be  given.  This  requirement  must  be  complied  with.  Otherwise, 


§  189      WORKMEN'S  COMPENSATION  AND  INSURANCE.      478 

3.    Name  of  injured Address 4.    Age Sex 

Color Place  of  birth 5.  Wages,  or  average 

earnings  per  day? Working  days  per  week? 

6.  How  long  had  he  been  receiving  such  wages? 

7.  What  work  was  he  engaged  in  when  injured? 

8.  How  long  had  he  been  doing  this  work? 9.  Was  this 

his    regular   employment? 10.  If   riot,    what    was    his 

regular  employment? 11.  Was   he   skilled   in   the 

labor  being  performed  when  injury  happened? 12.  When 

did  he  enter  your  employment? 13.  How  long  have 

you  known  him? 14.  How  long  was  injured  per- 
son disabled? days.     15.  How  long  off  duty? days. 

16.  What  statement,  if  any,  has  injured  person  made? 

17.  Give  accurate  description  of  injury 

18.  Where  was  injured  person  taken  after  accident?     (If  to  a  hos- 
pital, give  name  and  address) 19.  Who  furnished 

medicines? Address 

20.  Name  of  attending  physician? Address 

21.  Date  of  accident Hour  of  day M. 

22.  Place  of  accident ,  County  of , 

Ohio, 23.    Give  full  details  as  to  how  accident 

happened 24.  Was  accident  caused  by  fault 

of  fellow  workman? 25.  Did  accident  happen  on 

the  premises,  or  at  the  plant,  or  in  the  course  of  employment, 

or  away  from  the  plant? 26.  If  away  from  the 

plant,  state  when,  how  and  by  whom  injured? 

27.    Was  injured  person  acting  under  direction  of  foreman  or  super- 
intendent?       28.  Names  and  addresses  of  witnesses: 

Name Address 

Name Address 

Name Address 

29.  Was  accident  caused  by  fault  of  machines  or  devices? 

30.  Name  of  machine,  device,  etc.,  causing  accident? 

Its  condition? 31.    Were  all  safeguards  in  their 

places  at  time  of  accident?    32.  If  any  safeguard  was  removed, 
by  whom  was  it  removed? 

34.    Manager  of  said  plant Address 


the^blank  will  be  returned  for  correction.  While  all  the  informa- 
tion asked  for  may  not  be  necessary  to  make  up  full  proof  in  every 
instance,  yet  it  is  necessary  for  other  requirements  of  this  depart- 
ment. 

Fill  out  blank  in  ink,  using  pen  or  typewriter. 


479  OHIO   ACT.  §  190 

35.    Foreman  or  superintendent  in  charge  of  department  where  de- 
ceased was  injured:     Name Address 

Witness: Signed 

Employer. 
By 

(Name  and  official  position  of 

person  making  this  report.) 
OATH. 

State  of  Ohio, County,  ss: 

Before  me,  a  notary  public  in  and  for  said  county,  on  the 

day  of ,  191 — ,  personally  appeared , 

who,  first  being  duly  sworn,  declared  that  the  facts  set  forth  in  the 
foregoing  certificate,  to  which  he  has  signed  his  name  in  my  pres- 
ence, are  true. 

(Seal.)  

Notary  Public. 
My  commission  expires 

§  190.     Form   of  certificate   and   oath  of  lay  wit- 
ness. (e)9 

State  Liability  Board  of  Awards,  Columbus,  Ohio. 

1.    Name  of  witness  making  this  report Address 

What  is  your  present  occupation? 

3.  Name  of  employer Address  

4.  Are  you  related  to  injured  person? In  what  way? 

What  interest,  if  any,  have  you  in  this  claim? 

5.  Name  of  injured Address 

6.  Age Color Nationality 

7.  What  work  was  he  engaged  in  when  injured? At  what 

weekly  wage?    $ 8.     How  long  had  he  been  doing  this 

work? 9.  Was  this  his  regular  employment? 

If  not,  what  was  his  regular  employment? 

10.  Was  he  skilled  in  the  work  being  done  at  time  of  accident? 

11.  Describe  the  injury 12.  Where  did  injured  per- 
son go  after  accident? 13.  When  did  he  return  to  work? 

Did  he  return  to  work  as  soon  as  he  was  able? 

14.  Give  full  details  as  to  how  accident  occurred 

15.  What  in  your  estimation,  was  the  immediate  cause  of  the  in- 
jury?      16.  Was  accident  caused  by  fault  of  any 

fellow  workman  of  injured  person? If  so,  give  name 

and  address.    17.  Did  accident  happen  on  the  premises,  or  at 
the  plant,  or  in  the  course  of  his  employment,  or  away  from 


»  All  questions  in  this  blank  should  be  answered,  or  if  any  ques- 
tion can  not  be  answered,  reason  for  not  answering  should  be  given. 
Fill  out  blank  in  ink,  using  pen  or  typewriter. 


§  191      WORKMEN'S  COMPENSATION  AND  INSURANCE.      480 

the  plant?    18.  If  away  from  plant,  state  where  and  by  whom 

he  was  injured? 19.  Give  names  of  two  other  witnesses: 

Name Address 

Name Address 

20.  Was  accident  caused  by  fault  of  machines  or  devices? 

21.  Name  of  machine,  device,  etc.,  causing  accident 

Its  condition?  i 

22.  Were  all  safeguards  in  their  places  at  time  of  accident? 

23.  If  any  safeguard  was  removed,  by  whom  was  it  removed? 

24.  Manager  of  said  plant: 

Name Address 

25.  Foreman  or  superintendent  in  charge  of  department  where  de- 
ceased was  injured: 

Name Address 

In  the  presence  of: Signed 

OATH. 

State  of  Ohio, County,  ss: 

Before  me,  ,  a  notary  public  in  and  for  said 

county,  on  this day  of ,   191__,  personally  ap- 
peared   ,  who  first  being  duly  sworn,  declared 

that  the  facts  set  forth  in  the  foregoing  certificate,  which he 

signed  in  my  presence,  are  true. 

(Seal.)  Notary  Public. 

My  commission  expires 


GROUP  II. 

FORMS  WHERE  DISABILITY  IS  TEMPORARY  PARTIAL,  TEM- 
PORARY TOTAL  OR  PERMANENT  PARTIAL. 

§  191.  Formal  procedure  to  obtain  money  to  pay 
for  medical,  nurse  and  hospital  services  and  medicines, 
with  compensation. 

A  workman  (or  woman),  who  is  covered  by  the  act 
and  whose  injury  does  incapacitate  him  for  a  period 
longer  than  seven  days,  is  entitled  to  be  compensated 
from  the  state  insurance  fund  for  medical,  nurse  and 
hospital  services  and  medicines  in  such  amounts  as  the 
Board  of  Awards  may  deem  proper,  not,  however,  in  any 
case  to  exceed  the  sum  of  two  hundred  dollars  ($200) 


OHIO    ACT.  §  192 

and  in  cases  of  temporary  partial  disability,  temporary 
total  disability,  or  permanent  partial  disability  he  is  en- 
titled to  certain  additional  compensation  based  upon  66 
and  2-3  per  cent,  of  the  impairment  of  his  wages  as  set 
forth  in  sections  23,  25,  26  and  31  of  the  act. 

The  forms  prescribed  by  the  board  in  this  group  of> 
cases  are  as  follows:  (a)  Application  for  money  to  pay 
for  expenses  of  sickness;  (b)  Employer's  certificate  and 
oath;  (c)  Physician's  fee  bill;  (d)  Druggist's  cost  bill;  ' 
(e)  Medical  fee  bill  and  hospital  charges,  and  (f)  Certi- 
ficate and  oath  of  lay  witness.  It  is  the  duty  of  the  offi- 
cial taking  the  acknowledgments  to  the  various  forms 
to  see  that  the  blanks  are  properly  filled  out  and  the  ac- 
knowledgment is  properly  taken. 

§  192.  Form  of  application  for  money  to  pay  for 
medical,  nurse  and  hospital  services  and  medicines,  with 
compensation,  (a)10 

State  Liability  Board  of  Awards,  Columbus,  Ohio. 

I, ,  of 

(Name  of  Applicant.)  (Post  Office.) 

,  County  of ,  State  of  Ohio, 

(Street  and  Number) 

do  hereby  make  application  for  money  to  pay  for  medical,  nurse  and 
hospital  services  and  medicines  and  for  compensation  for  injuries 

received  while  in  the  employ  of ,  whose  plant  is 

at ,  County  of ,  State  of  Ohio. 


10  All  the  questions  in  this  blank  form  must  be  answered,  or  if 
any  question  can  not  be  answered,  reason  for  not  answering  must 
be  given.  This  requirement  must  be  complied  with.  Otherwise,  the 
blank  will  be  returned  for  correction.  While  all  the  informa- 
tion asked  for  may  not  be  necessary  to  make  up  full  proof  in  every 
instance,  yet  it  is  necessary  for  other  requirements  of  this  depart- 
ment. 

Fill  out  blank  in  ink,  using  pen  or  typewriter. 

Applications  for  awards  in  all  cases  of  injury  not  resulting  in 
death  must  be  made  by  the  party  injured  NOT  LESS  THAN  TWO 
WEEKS  NOR  MORE  THAN  THREE  MONTHS  after  the  injury  Is 
received. 

31— BOTDWC 


§  192     WORKMEN'S  COMPENSATION  AND  INSURANCE.     482 

I  have  incurred  for  said  services  and  medicines  for  treatment 
for  the  injury  herein  described  the  following  bills: 

Date.         To  Whom  Paid  or  Due.        Item.        Amount    Bills  Paid 

(Yes  or  No) 


I  enclose  herewith  all  of  the  above  bills  properly  made  out, 
sworn  to,  and,  if  paid,  properly  receipted. 

1.  Age Sex Color Place  of  birth , 

Married,  single  or  divorced? Wife  living? 

How  many  children  living? Their  ages? 

Which  of  them  are  dependent  upon  you  for  support? :_ 

To  what  degree  is  each  dependent? 

2.  What  weekly  wage  were  you  receiving  at  the  time  of  injury? 

3.     How  long  had  you  been  receiving  such  wages? 

4.  Have  you  any  other  income? If  so,  how 

much  and  from  what  source  derived? 5.  What 

work  were  you  engaged  in  when  injured? 

6.  How  long  had  you  been  doing  this  work 7.  Was 

this  your  regular  employment? 8.  If  not,  what  was 

your  regular  employment? 

9.  Have  you  ever  received  any  other  injury? If  so,  when, 

where  and  what  was  its  nature? 

10.  Have  you  had  any  recent  sickness? If  so,  describe  it  and 

give  name  of  attending  physician 

11.  Have  you  ever  had  a  serious  sickness? If  so,  what  wasfi 

it,  how  long  did  it  last,  and  who  was  attending  physician? 

12.  Were  you  in  good  health  at  time  of  this  accident? 

13.  When  did  you  enter  employ  of  present  employer? 

14.  With  whom  were  you  employed  previous  to  this? 

15.  How  long? 16.  Were  you  skilled  in  the  labor  being 

performed  when  the  injury  happened? 17.  When  did 

you  return  to  work? 18.  Were  you  able  to  take 

up  your  regular  employment? 19.  Did  you  take  up  your 

regular  employment? At  what  daily  wage? If 

not,  why  not? And  if  not,  what  employment 

did  you  take  up? At  what  wage? 

20.  How  soon  will  you  be  able  to  do  the  work  you  were  doing  when 
injured  and  at  the  wages  then  received? 

21.  Is  your  new  employment  a  temporary  one  or  given  you  for  tem- 
porary convenience  of  yourself  or  employer,  or  is  it  a  perma- 
nent job?   


483  OHIO   ACT.  §  192 

22.  What  is  the  impairment  of  your  earning  capacity  because  of 

this  injury  alone?    Answer:  I  am  now  able  to  earn per 

cent,  and  no  more,  of  the  wages  I  was  able  to  earn  before  this 
injury.     This  answer  is  based  upon  my  actual  disability  and 
not  upon  wages  I  am  now  receiving. 

23.  Fill  out  this  scale:     Because  of  the  injury  herein  mentioned, 

I  was  totally  disabled  for days; per 

cent,  disabled  for days;  and, per  cent. 

disabled  for days. 

24.  Describe  the  injury 

25.  Where  did  you  go  after  accident? 26.  How  many 

days   were   you   disabled? 27.    Have   you   returned   to 

work? If  not,  when   will  you   be   able   to   return   to 

work? 28.  When  were  you  able  to  return  to  work? 

29.  Did  you  return  to  work  as  soon  as  you  were 

able? Why? 30.  Name  of  attend- 
ing physician Address  

31.  Date  of  accident Hour  of  day? M. 

32.  State  clearly  the  manner  in  which  you  were  injured 

33.  Was  accident  caused  by  fault  of  fellow  workman? 

34.  Did  the  accident  happen  on  the  premises,  or  at  the  plant,  or  in 
the  course  of  your  employment,  or  away  from  the  plant  of  your 

employer? 35.    If  away  from  the  plant,  state 

where,  how  and  by  whom  injured 

36.  Were  you  acting  under  the  direction  of  a  superintendent? 

37.  Was  accident  caused  by  fault  of  machines  or  devices? 

38.  Name  of  machine,  device,  etc.,  causing  accident 

Condition? 39.  Were  all  safeguards  in  their  places 

at  the  time  you  were  hurt? 40.  If  any  safeguard  was  re- 
moved, did  you  remove  it  or  was  it  removed  by  any  of  your 
fellow  workmen,  or  superintendent  or  foreman? 

41.  Name  of  manager  of  said  plant Address 

42.  Name  of  foreman  or  superintendent  in  charge  of  the  department 
in  which  I  was  injured Address 

43.  Names  of  three  witnesses  who  witnessed  the  accident : 

Name Address 

Name Address 

Name Address 

44.  Have  you  previously  received  any  compensation  from  the  State 
Insurance  Fund? If  so,  when  and  how  much? 

45.  Do  you  carry  any  accident  insurance? If  so,  how  much 

and  in  what  companies? 46.  Are  you  a 

member  of  any  lodge? If  so,  what  lodge  or  lodges? 

Witness:    .  (Signed)    


§  193      WORKMEN'S  COMPENSATION  AND  INSURANCE.      484 

OATH. 

State  of  Ohio, County,  ss: 

Before  me,  a  notary  public  In  and  for  said  county,  on  this 

day  of ,  191 — ,  personally  appeared , 

the  above  named  applicant,  who,  first  being  duly  sworn,  declares 
that  the  facts  set  forth  in  the  foregoing  application  are  true. 

(Seal.)  

My  commission  expires 

§  193.     Form      of      employer's      certificate      and 
oath,  (b)11 

State  Liability  Board  of  Awards,  Columbus,  Ohio. 

1.  Name  of  employer Address 

2.  Nature  of  business 

3.  Name  of  injured Address 

4.  Age Sex Color Place  of  birth 

Married,  single,  or  divorced? Wife  or  husband  liv- 
ing?       How  many  children  living? Their 

ages? Which  of  them  are  dependent  upon  in- 
jured person  for  support? To  what  degree  is  each 

dependent?  

5.  What  weekly  wage  was  he  receiving  at  time  of  injury? 

6.  How  long  had  he  been  receiving  such  wages? 7.  What 

work  was  he  engaged  in  when  injured? 8.  How  long 

had  he  been  doing  this  work? 9.  Was  this  his  regular 

employment? If  not,  what  was  his  regular  employ- 
ment?       10.  Was  he  skilled  in  the  labor  being 

performed    when    injury    happened? 11.  When    did    he 

enter  your  employment? 12.  How  long  have  you  known 

him? 13.  With  whom  was  he  employed  previous  to 

this? Address How  long? 

14.  What  statement,  if  any,  has  injured  person  made? 

15.  Has  he  ever  laid  off  for  sickness? If  so,  for  how  long  a 

time  and  what  was  his  habit  in  this  respect? 

16.  Has  injured  person  returned  to  work? 17.  How  long 

•was  he  disabled? How  long  off  duty? 

18.     If  still  off  duty,  when  in  your  estimation,  will  he  be  able  to  re- 


11  All  the  questions  in  this  blank  form  must  be  answered,  or  if 
any  question  can  not  be  answered,  reason  for  not  answering  must 
be  given.  This  requirement  must  be  complied  with.  Otherwise,  the 
blank  will  be  returned  for  correction.  While  all  the  information 
asked  for  may  not  be  necessary  to  make  up  full  proof  in  every  in- 
stance, yet  it  is  necessary  for  other  requirements  of  this  department. 
Fill  out  blank  in  ink,  using  pen  or  typewriter. 


OHIO    ACT.  §  193 

turn  to  work? 19.  When  did  he  return  to  work? 

20.  Was  he  able  to  take  up  his  regular  employ- 
ment?   If  not,  why  not? If  not,  what  em- 
ployment did  he  take  up? 21.  At  what  weekly 

wage? 22.  How  soon  will  he  be  able  to  do  the  work 

he  was  doing  when  injured  and  at  the  wage  then  received? 

i23.    Was  his  new  employment  a  temporary  one  or  given  him  for 
temporary  convenience,  or  is  it  a  permanent  job? 

24.  What  was  the  impairment  of  his  earning  capacity  because  of 

this  injury  alone?    Answer:  He  is  now  able  to  earn 

per  cent,  and  no  more,  of  the  wages  he  was  able  to  earn  before 
this  injury.     This  answer  is  based  upon  his  actual  disability, 
and  not  upon  the  wages  he  is  now  receiving. 

25.  Fill  out  this  scale:     Because  of  the  injury  herein  mentioned, 

said  injured  person  has  been  totally  disabled  for days; 

%  disabled  for days; %  disabled  for days; 

%  disabled  for days;  and  in  my  estimation  he  will  be 

%    disabled    for days    longer.     26.  Did   he    return    to 

,          work  as  soon  as  he  was  able?: 27.  Give  accurate  descrip- 
tion of  injury 

28.  Where  was  injured  person  taken  after  accident?     (If  to  a  hos- 
pital, give  name  and  address) 

29.  Who  furnished  medicines? Address 

30.  Names  of  attending  physicians: 

Name , Address 

Name Address 

31.  Date  of  accident Hour  of  day M. 

32.  Place  of  accident:  P.  O ,  Street  and  No 

County  of ,  Ohio, Building 

33.  Give  full  details  as  to  how  accident  happened 

34.  Was  accident  caused  by  fault  of  fellow  workman? 

35.  Did  accident  happen  on  the  premises,  or  at  the  plant,  or  in 
the  course  of  employment,  or  away  from  plant? 

36.  If  away  from  plant,  state  when,  how  and  by  whom  injured? 
_ — _ — _______ — _______ — _ 

37.  Was  injured  person  acting  under  direction  of  a  superintendent? 
38.  Names  and  addresses  of  witnesses: 

Name Address 

Name Address 

Name Address 

39.  Was  accident  caused  by  fault  of  machines  or  devices? 

40.  Name  of  machine,  device,  etc.,  causing  accident? 

Condition  41.  Were  all   safeguards   in   their 

places  at  time  of  accident? 42.  If  any  safeguard  was 

removed,  by  whom  was  it  removed? 

43.    Manager  of  said  plant: Address 


§  194      WORKMEN'S  COMPENSATION  AND  INSURANCE.      486 

44.    Foreman  or  superintendent  in  charge  of  department  where  de- 
ceased was  injured: 

Address   

Witness:  Signed 

Employer. 

By 

(Name  and  official  position  of 
person  making  this  report.) 


OATH. 


State  of  Ohio, County,  ss: 

Before  me,  a  notary  public  in  and  for  said  county,  on  the 

day  of ,  191__,  personally  appeared , 

who,  first  being  duly  sworn,  declared  that  the  facts  set  forth  in  the 
foregoing  certificate,  to  which  he  has  signed  his  name  in  my  pres- 
ence, are  true. 

(Seal.)  

Notary  Public. 
My  commission  expires 

§  194.     Form  of  physician's  fee  bill,   (c) 

The  following  is  an  itemized  account  of  professional  services 

rendered  in  connection  with  the  treatment  of  injury  to 

(Name  of  patient.) 

of together  with  charges  therefor: 

(Full  address  of  patient.) 

Date.  Items.  Amount. 


(Items  should  be  written  out  fully.    Do  not  abbreviate.) 

(Signature  of  Affiant.) 


OATH. 

State  of  Ohio, County,  ss: 

„, ,  being  first  duly  cautioned  and  sworn, 

says  that  he  treated  the  injury  to  the  above  named  person  and  that 
his  services  were  required  and  furnished  on  account  of  the  purpose 
above  mentioned,  and  the  same  were  necessary  therefor,  and  that 
the  charges  are  reasonable  and  not  more  than  he  charges  for  like 
services  in  other  instances. 

Sworn  to  before  me  and  subscribed  in  my  presence,  this 

day  of ,  191 

(Seal.)  

Notary  Public. 
My  commission  expires 


OHIO   ACT.  §  195 

§  195.     Form  of  druggist's  cost  bill,  (d) 

The  following  is  an  itemized  account  of  medicines  furnished  and 
services  rendered  in  connection  with  the  treatment  of  injury  to 
,  of 

(Name  of  patient.)  (Full  address  of  patient.) 

together  with  charges  therefor: 

Date.  Items.  Amount. 


(Items  should  be  written  out  fully.    Do  not  abbreviate.) 

(Signature  of  Affiant.) 


OATH. 
State  of  Ohio, County,  ss : 

,  being  first  duly  cautioned  and  sworn, 

says  that  the  above  articles  or  services  were  required  and  furnished 
on  account  of  the  purpose  above  mentioned,  and  the  same  were 
necessary  therefor,  and  that  the  charges  are  reasonable  and  not 
more  than  he  charges  for  like  services  in  other  instances. 

Sworn  to  before  me  and  subscribed  in  my  presence,  this 

day  of ,  191 


Notary  Public. 
(Seal.)  My  commission  expires 


§  196.  Form  of  medical  fee  bill  and  hospital 
charges,  (e) 

The  following  is  an  itemized  account  of  medicines  furnished  and 
services  rendered  in  connection  with  the  treatment  of  injury  to 
of , 

(Name  of  patient.)  (Full  address  of  patient.) 

together  with  charges  therefor: 

Date.  Items.  Amount. 


(Items  should  be  written  out  fully.    Do  not  abbreviate.) 

(Signature  of  Affiant. 


§  197      WORKMEN'S  COMPENSATION  AND  INSURANCE.      488 

OATH. 

State  of  Ohio, County,  ss: 

,  being  first  duly  cautioned  and  sworn, 

says  that is of , 

(Official  position.)  (Name  of  hospital.) 

of ,  and  as  such  duly  authorized  in  the  premises; 

(Address.) 

that  the  above  articles  or  services  were  required  and  furnished  on 
account  of  the  purpose  above  mentioned,  and  the  same  were  neces- 
sary therefore,  and  that  the  charges  are  reasonable  and  not  more 
than  is  charged  by  affiant  for  like  services  in  other  instances. 

Sworn  to  before  me  and  subscribed  in  my  presence,  this 

day  of ,  191__. 


Notary  Public. 
(Seal.)  My  commission  expires 


§  197.     Form  of  certificate  and   oath  of  lay  wit- 
ness.  (f)12 

State  Liability  Board  of  Awards,  Columbus,  Ohio. 

1.  Name  of  witness  making  this  report Address 

What  is  your  present  occupation? 

2.  Name  of  your  employer? Address 

3.  Are  you  related  in  any  way  to  injured  person? If  so, 

in  what  way? What  interest,  if  any,  have  you  in  this 

claim? 

4.  Name  of  injured  person Address 

5.  Age Color Nationality  Married, 

single  or  divorced? Wife  or  husband  living? 

How  many  children  living? Their  ages? 

To  what  degree  are  each  dependent? 

6.  What  weekly  wage  was  he  receiving  at  time  of  injury? 

7.  How  long  had  he  been  receiving  such  wages? 8.  Has 

he  any  other  source  of  income? If  so,  how  much  and 

from  what  source  derived? 9.  What  work  was 

he  engaged  in  at  time  of  accident? 10.  How  long 

had  he  been  doing  this  work? 11.  Was  this  his  regu- 
lar employment? If  not,  what  was  his  regular   em- 
ployment?      12.  Was  he  skilled  in  the  work  being 

done  at  time  of  accident? 13.  Has  he  ever  received 

any  other  injury  to  your  knowledge? If  so,  when,  where 


12A11  questions  in  this  blank  should  be  answered,  or  if  any 
question  can  not  be  answered,  reason  for  not  answering  should  be 
given. 

Fill  out  blank  in  ink,  using  pen  or  typewriter. 


489  OHIO   ACT.  §  197 

and  what  was  its  nature? 14.  Has  he 

ever  had  any  serious  sickness  to  your  knowledge? 

If  so,  what  was  it  and  how  long  did  it  last? 15.  Has 

he  had  any  recent  sickness  to  your  knowledge? If  so, 

what  was  it  and  how  long  did  it  last? 16.  Was  he 

in  good  health  at  time  of  accident? 17.  When 

did  he  return  to  work? Was  he  able  to  take  up  his 

regular  employment? If  not,  why  not? And 

what  employment  did  he  take  up? At  what  weekly 

wage? 18.  When  will  he  be  able  to  take  up  the  work 

he  was  doing  at  time  of  injury? 19.  What,  in  your 

estimation,  is  the  impairment  of  his  earning  capacity  because 

of  this  injury  alone?    Answer:     He  is  now  able  to  earn 

per  cent.,  and  no  more,  of  the  wages  he  was  able  to  earn  prior 
to  this  injury.  This  answer  is  based  upon  his  actual  disability 
and  not  upon  wages  he  is  now  receiving. 

20.     Was  deceased  a  member  of  any  lodge? If  so,  what  lodge 

or  lodges? Did  deceased  carry  any  accident  in- 
surance?    If  so,  how  much  and  in  what  companies? 


INJURY. 

21.  Describe  the  injury 

22.  Where  did  injured  person  go  after  accident  ?- 

23.  Who  was  attending  physician: 

Name Address 

24.  Who  furnished  medicines: 

Name  _.  Address 


ACCIDENT. 

25.  Give  full  details  as  to  how  accident  occurred? 

26.  What,  in  your  estimation,  was  the   immediate  cause  of  the 
injury  ? 

27.  Was  accident  caused  by  fault  of  fellow  workman  of  injured, 
person? If  so,  give  name Address 

28.  Did  accident  happen  on  the  premises,  or  at  the  plant,  or  in  the 
course  of  his  employment,  or  away  from  the  plant? 

29.  If  away  from  the  plant,  state  where  and  by  whom  he  was  in- 
jured?     30.  Give  names  of  two  other  witnesses: 

Name Address 

Name Address 

MACHINERY. 

31.  Was  accident  caused  by  fault  of  machines  or  devices? 

32.  Name  of  machine,  device,  etc.,  causing  accident 

Condition  _.  33.  Were  all  safeguards  in  their  places 


§  198     WORKMEN'S  COMPENSATION  AND  INSURANCE.      490 

at  time  of  accident? 34.  If  any  safeguard  was  removed, 

by  whom  was  it  removed? Address 

35.  Manager  of  said  plant: 

Name Address 

36.  Foreman  or  superintendent  in  charge  of  department  where  de- 
ceased was  injured: 

Name Address 

In  the  presence  of: 

Signed  

OATH. 

State  of  Ohio, County,  ss: 

Before  me, ,  a  notary  public  in  and  for  said 

county,  on  this day  of ,  191__,  personally  ap- 
peared   who,  first  being  duly  sworn,  declared 

that  the  facts  set  forth  in  the  foregoing  certificate,  which he  signed 

in  my  presence,  are  true. 

(Seal.)  

Notary  Public. 
My  commission  expires 


GROUP  III. 
FORMS  IN  CASES  OF  PERMANENT  TOTAL  DISABILITY. 

§  198.  Formal  procedure  to  obtain  compensation  in 
case  of  permanent  total  disability. 

In  cases  of  permanent  total  disability  the  workman  is 
entitled  to  compensation  for  medical,  nurse  and  hospital 
services  and  medicines  in  such  amounts  as  the  board 
may  deem  proper,  not  however  in  any  case  to  exceed  the 
sum  of  two  hundred  dollars  ($200),  and  is  entitled  in 
addition  thereto  to  compe'nsation  at  the  rate  of  66  and 
2-3  per  cent,  of  the  impairment  of  his  average  weekly 
wage  as  long  as  total  disability  lasts,  as  made  and  pro- 
vided in  sections  23  and  27  of  the  act. 

The  forms  prescribed  in  this  group  of  cases  are:  (a) 
Application  for  money  to  pay  for  medical,  nurse  and  hos- 
pital services  and  medicine,  with  compensation;  (b)  em-* 
ployer's  certificate  and  oath;  (c)  physician's  fee  bill;  (d) 
druggist's  cost  bill;  (e)  medical  fee  bill  and  hospital 
charges,  and  (f)  certificate  and  oath  of  lay  witness.  It 


49 1  OHIO  ACT.  §  199 

is  the  duty  of  the  acknowledging  official  to  see  that  the 
blanks  are  properly  filled  and  the  acknowledgment  prop- 
erly taken. 

§  199.  Form  of  application  for  money  to  pay  for 
medical,  nurse  and  hospital  services  and  medicines,  with 
compensation,  (a) 1 3 

State  Liability  Board  of  Awards,  Columbus,  Ohio. 
I, of , 

(Name  of  Claimant)  (Post  Office) 

,  County  of ,  State  of  Ohio, 

(Street  and  Number) 

by ,  ,  of  claimant, 

(Name  of  Applicant.)  (Authority) 

do  hereby  make  application  for  money  to  pay  for  medical,  nurse  and 
hospital  services  and  medicines  and  for  compensation  for  injuries 

received  while  in  the  employ  of whose  plant  is 

situated  at ,  County  of ,  State  of  Ohio. 

Said  injuries  have  resulted  in  permanent  total  disability. 

I  have  incurred  for  said  services  and  medicines  for  treatment 
for  the  injury  herein  described  the  following  bills: 

Date    To  Whom  Paid  or  Due        Item  Amount    Bill  Paid 

(Yes  or  No) 


I  enclose  herewith  all  of  the  above  bills  properly  made  out, 
sworn  to,  and,  if  paid,  properly  receipted. 

1.    Age Sex Color Place  of  birth? 

Married,  single  or  divorced? Wife  or  husband  living? 

How  many  children  living? Their  ages? 

Which  of  them  are  dependent  upon  you  for  support? 


is  All  the  questions  in  this  blank  form  must  be  answered,  or  if 
any  question  can  not  be  answered,  reason  for  not  answering  must 
be  given.  This  requirement  must  be  complied  with.  Otherwise, 
the  blank  will  be  returned  for  correction.  While  all  the  information 
asked  for  may  not  be  necessary  to  make  up  full  proof  in  every  in- 
stance, yet  it  is  necessary  for  other  requirements  of  this  department. 
Fill  out  blank  in  ink,  using  pen  or  typewriter. 
Applications  for  awards  in  all  cases  of  injury  not  resulting  in 
death  must  be  made  by  the  party  injured  NOT  LESS  THAN  TWO 
WEEKS  NOR  MORE  THAN  THREE  MONTHS  after  the  injury  is 
received. 


§  199      WORKMEN'S  COMPENSATION  AND  INSURANCE.      492 

To  what  degree  is  each  dependent? , 

2.  What  weekly  wage  were  you  receiving  at  time  of  injury? 

3.  How  long  had  you  been  receiving  such  wages? 

4.  Have  you  any  other  income? If  so,  how  much  and  from 

what  source  derived? 5.  What  work  were  you  en- 
gaged in  when  injured? 6.  How  long  had  you  been 

doing  this   work? 7.  Was  this  your  regular  em- 
ployment?      8.  If  not,   what   was   your   regular   employ- 
ment?      9.  Have  you   ever   received   any 

other  injury? If  so,  when,  where,  and  what  was  its 

nature? 10.  Have  you  had   any   recent 

sickness? If  so,  describe  it  and  give  name  of  attend- 
ing physician 11.  Have  you  ever  had  a 

serious  sickness? If  so,  what  was  it,  how  long  did  it 

last,  and  who  was  attending  physician? 

12.  Were  you  in  good  health  at  the  time  of  this  accident? 

13.  When  did  you  enter  employ  of  present  employer? 

14.  With  whom  were  you  employed  previous  to  this? 

15.  How   long? 16.  Were  you  skilled  in  the  labor  being 

performed  when  the  injury  was  sustained? 17.  Did 

permanent  total  disability  ensue  immediately  after  injury  was 
sustained? 18.  If  not,  when  did  permanent  total  dis- 
ability ensue? 19.  Did  you  return  to  work  before 

permanent  total  disability  ensued? When? 

How  long  did  you  work? At  what  weekly  wage? 

20.  What   impairment  of   earning  capacity   resulted 

from  injury  and  lasted  through  the  period  last  mentioned? 

INJURY. 

21.  Describe  the  injury 

22.  Where  did  you  go  after  accident? 

23.  Names  of  attending  physicians: 

Name Address 

Name  _.  Address  _ 


ACCIDENT. 

24.  Date  of  accident Hour  of  day M. 

25.  State  clearly  the  manner  in  which  you  were  injured 

26.  Was  accident  caused  by  fault  of  fellow  workmen? 

27.  Did  accident  happen  on  the  premises,  or  at  the  plant,  or  in  the 
course  of  your  employment,  or  away  from  the  plant  of  your 

employer? 28.  If  away  from  the  plant,  state 

when,  how  and  by  whom  injured 

29.     Were  you  acting  under  the  direction  of  a  superintendent  or 
foreman?  _  


493  OHIO  ACT.  §  199 

MACHINERY. 

30.  Was  accident  caused  by  fault  of  machines  or  devices? 

31.  Name  of  machine,  device,  etc.,  causing  accident? 

Condition? 32.  Were  all  safeguards  in  their 

places  at  the  time  you  were  hurt? 33.  If  any  safeguard 

was  removed,  did  you  remove  it  or  was  it  removed  by  any  of 
your  fellow  workmen,  or  superintendent  or  foreman? 

34.  Name  of  manager  of  said  plant Address 

35.  Name  of  foreman  or  superintendent  in  charge  of  the  department 
in  which  injury  was  sustained Address 

36.  Names  of  three  witnesses  who  witnessed  the  accident: 

Name Address 

Name Address 

Name Address 

37.  Have  you  previously  received  any  compensation  from  the  State 
Insurance  Fund? If  so,  when  and  how  much? 

38.  Do  you  carry  any  accident  insurance? If  so,  how  much 

and  in  what  companies? 39.  Are  you  a  mem- 
ber of  any  lodge? If  so,  what  lodge  or  lodges? 

Witness: (Signed) 

OATH. 

State  of  Ohio, County,  ss: 

Before  me,  a  notary  public,  in  and  for  said  county,  on  this 

day  of ,  191 ,  personally  appeared , 

the  above  named  claimant,  who,  being  first  duly  sworn,  declared  that 
the  facts  set  forth  in.  the  foregoing  application  are  true. 

(Seal.)  

Notary  Public. 

My  commission  expires 

(Following  oath  to  be  made  by  person  representing  claimant 
because  of  the  latter's  disability  and  consequent  inability  to  make 
application  in  person.) 

OATH. 

State  of  Ohio, County,  ss: 

Before  me,  a  notary  public  in  and  for  said  county,  on  this 

day  of ,  19__,  personally  appeared , 

representing  the  above  named  claimant,  who  first  being  duly  sworn, 
declared  that ,  the  above  named  claimant,  is  physi- 
cally unable  to  make  this  application  in  person  and  that  he  therefore 

acts  in  this  representative  capacity  by  authority ,  and 

he  further  declared  that  the  facts  set  forth  in  the  foregoing  applica- 
tion are  true. 

(Seal.)  ,. 

Notary  Public. 
My  commission  expires 


§  2oo      WORKMEN'S  COMPENSATION  AND  INSURANCE.      494 

§  200.     Form      of      employer's      certificate      and 
oath,  (b)14 

State  Liability  Board  of  Awards,  Columbus,  Ohio. 
1.    Name  of  employer  ----------    2.  Nature  of  business  __________ 

3.  Name  of  injured  ----------------    Address  __________________  .__ 

4.  Age  ------     Sex  ------     Color  ______     Place  of  birth  ________ 

Married,  single,  or  divorced?  ________    Wife  or  husband  living? 

________     How  many  children  living?  ______     Their  ages?  ______ 

Which  of  them  are  dependent  upon  injured  person  for  support? 
------------    To  what  degree  is  each  dependent?  ------------- 

5.  What  weekly  wage  was  he  receiving  at  time  of  injury?  --------- 

6.  How  long  had  he  been  receiving  such  wages?  --------     7.  What 

work  was  he  engaged  in  when  injured?  ----------     8.  How  long 

had  he  been  doing  this  work?  ________________     9.  Was  this  his 

regular  employment?  ________     If  not,  what   was   his   regular 

employment?  ______________    10.  Was  he  skilled  in  the  labor 

being  performed  when  injury  happened?  ------    11.  When  did 

he  enter  your  employment?  __________     12.  With  whom  was  he 

employed  previous  to  this?  ____________    How  long?  ---------- 

13.  What  statement,  if  any,  has  injured  person  made?  ------------- 

14.  Has  he  ever  laid  off  for  sickness?  ______     If  so,  for  how  long  a 

time  and  what  was  his  habit  in  this  respect?  __________________ 

15.  Did  permanent  disability  ensue  immediately  after  injury  was 
sustained?  ______     If  not,  when  did  permanent  disability  ensue? 

____________     16.  Did   injured   person    return   to   work   before 

permanent  disability  ensued?  ________     When?  __________     How; 

long  did  he  work?  ____________    At  what  weekly  wage?  -------- 

17.  What  impairment  of  earning  capacity  resulted  from  injury  and 
lasted  through  period  last  mentioned?    Answer:  He  was  able 
to  earn  __________  per  cent.,  and  no  more,  of  his  former  wage. 

This  statement  is  based  upon  his  actual  disability. 

18.  Give  accurate  description  of  injury  __________________________ 

19.  Where  was  injured  person  taken  after  accident?     (If  to  a  hos- 
pital give  name  and  address)  ______________     20.  Who  furnished 

medicines?  _________  .  __________    Address  -------------------- 


i*  All  the  questions  in  this  blank  form  must  be  answered,  or  if 
any  question  can  not  be  answered,  reason  for  not  answering  must  be 
given.  This  requirement  must  be  complied  with.  Otherwise,  the 
blank  will  be  returned  for  correction.  While  all  the  information 
asked  for  may  not  be  necessary  to  make  up  full  proof  in  every 
instance,  yet  it  is  necessary  for  other  requirements  of  this  depart- 
ment. 

Fill  out  blank  in  ink,  using  pen  or  typewriter. 


495  OHI°  ACT- 

21.  Names  of  attending  physicians: 

Name Address 

Name Address 

22.  Date  of  accident Hour  of  day M. 

23.  Place  of  accident:  P.  O ,  Street  and  No 

County  of ,  Ohio, Building 

24.  Give  full  details  as  to  how  accident  happened 

25.  Was  accident  caused  by  fault  of  fellow  workman? 

26.  Did  accident  happen  on  the  premises,  or  at  the  plant,  or  in  the 

course  of  employment,  or  away  from  plant? 27.  If 

away  from  the  plant,  state  when,  how  and  by  whom  injured? 

28.     Was  injured  person  acting  under  direction  of  a  superintendent? 

29.  Names  and  addresses  of  witnesses: 

Name Address 

Name Address 

Name Address . 

30.  Was  accident  caused  by  fault  of  machines  or  devices? 

31.  Name  of  machine,  device,  etc.,  causing  accident? 

Condition?  32.    Were  all  safeguards  in  their 

places  at  time  of  accident? 33.  If  any  safeguard  was  re- 
moved, by  whom  was  it  removed? 

34.  Manager  of  said  plant Address 

35.  Foreman  or  superintendent  in  charge  of  department  where  de- 
ceased was  injured: 

Name Address 

Witness: Signed 

Employer. 

By 

(Name  and  official  position  of 
person  making  this  report.) 

OATH. 

State  of  Ohio, _ County,  ss: 

Before  me,  a  notary  public  in  and  for  said  county,  on  the 

day  of ,  191__,  personally  appeared , 

who,  first  being  duly  sworn,  declared  that  the  facts  set  forth  in  the 
foregoing  certificate,  to  which  he  has  signed  his  name  in  my  pres- 
ence, are  true. 

(Seal.)  

Notary  Public. 
My  commission  expires 


§  2Oi      WORKMEN'S  COMPENSATION  AND  INSURANCE.      496 
§  201.     Form  of  physician's  fee  bill,  (c) 

The  following  is  an  itemized  account  of  professional  services 

rendered  in  connection  with  the  treatment  of  injury  to 

(Name  of  patient.) 
of together  with  charges  therefor: 

(Full  address  of  patient.) 

Date.  Items.  Amount. 


(Items  should  be  written  out  fully.     Do  not  abbreviate.) 

(Signature  of  Affiant.) 


OATH. 

State  of  Ohio, County,  ss: 

,  being  first  duly  cautioned  and  sworn,  says 

that  he  treated  the  injury  to  the  above  named  person  and  that  his 
services  were  required  and  furnished  on  account  of  the  purpose 
above  mentioned,  and  the  same  were  necessary  therefor,  and  that 
the  charges  are  reasonable  and  not  more  than  the  charges  for  like 
services  in  other  instances. 

Sworn  to  before  me  and  subscribed  in  my  presence,  this 

day  of ,  191__. 

(Seal.)  

Notary  Public. 
My  commission  expires 

§  202.     Form  of  druggist's  cost  bill,  (d) 

The  following  is  an  itemized  account  of  medicines  furnished  and 
services  rendered  in  connection   with  the  treatment  of  injury  to 

,  of ,  together  with  charges 

(Name  of  patient.)     (Pull  address  of  patient.) 
therefor : 

Date.  Items.  Amount. 


(Items  should  be  written  out  fully.     Do  not  abbreviate.) 

(Signature  of  Affiant.) 


497  OHIO  ACT.  §  203 

OATH. 
State  of  Ohio, County,  ss: 

,  being  first  duly  cautioned  and  sworn,  says 

that  the  above  articles  or  services  were  required  and  furnished  on 
account  of  the  purpose  above  mentioned,  and  the  same  were  neces- 
sary therefor,  and  that  the  charges  are  reasonable  and  not  more  than 
lie  charges  for  like  services  in  other  instances. 

Sworn  to  before  me  and  subscribed  in  my  presence,  this 

day  of ,  191 


Notary  Public. 
(Seal.)  My  commission  expires 


203.     Form    of    medical    fee    bill    and    hospital 
charges,  (e) 

The  following  is  an  itemized  account  of  medicines  furnished  and 
services  rendered  in  connection  with  the  treatment  of  injury  to 

,  of ,  together  with 

(Name  of  patient.)  (Full  address  of  patient.) 

charges  therefor: 

Date.  Items.  Amount. 


(Items  should  be  written  out  fully.    Do  not  abbreviate.) 

(Signature  of  Affiant.) 


OATH. 

State  of  Ohio, County,  ss: 

,  being  first  duly  cautioned  and  sworn,  says 

that is of , 

(Official  position.)  (Name  of  hospital.) 

of ,  and  as  such  duly  authorized  in  the  prem- 

(Address.) 

ises;  that  the  above  articles  or  services  were  required  and  furnished 
on  account  of  the  purpose  above  mentioned,  and  the  same  were 
necessary  therefor,  and  that  the  charges  are  reasonable  and  not  more 
than  is  charged  by  affiant  for  like  services  in  other  instances. 

Sworn  to  before  me  and  subscribed  in  my  presence,  this 

day  of—.  .,  191__ 


Notary  Public. 

(Seal.)  My  commission  expires 

32— BOTD  w  c 


§  2O4      WORKMEN'S  COMPENSATION  AND  INSURANCE.      498 

§  204.     Form   of   certificate   and   oath   of  lay  wit- 
ness (f).15 

State  Liability  Board  of  Awards,  Columbus,  Ohio. 

1.  Name  of  witness  making  this  report Address 

What  is  your  present  occupation? 

2.  Name  of  employer Address 

3.  Are  you  related  in  any  way  to  injured  person? If  so,  in 

what  way    What  interest  have  you  in  this  claim? 

4.  Name  of  injured  person Address 

5.  Age Color Nationality Married,  single 

or  divorced?    Wife  or- husband  living? How  many  chil- 
dren   living? Their   ages To    what   degree    are 

each  dependent? 6.  What  weekly  wage  was  he 

receiving  at  time  of  injury? 7.  How  long  had  he  been 

receiving  such  wages? 8.  Has  he  any  other  source  of 

income? If  so,  how  much  and  from  what  source  derived? 

9.  What  work  was  he  engaged  in  at  time  of 

accident? 10.  How  long  had  he  been  doing  this 

work? 11.  Was  this  his  regular  employment? 

If  not,  what  was  his  regular  employment? 12.  Was 

he  skilled  in  the  work  being  done  at  time  of  accident? 

~~13.     Has  he  ever  received  any  other  injury  to  your  knowledge? 

If  so,  when,  where  and  what  was  its  nature? 

14.  Has  he  ever  had  any  serious  sickness  to  your  knowledge? 

If  so,  what  was  it  and  how  long  did  it  last? 

15.  Has  he  had  any  recent  sickness  to  your  knowledge? 

If  so,  what  was  it  and  how  long  did  it  last? 16.  Was 

he  in  good  health  at  time  of  accident? 17.  Did  perma- 
nent total  disability  ensue  immediately  after  injury  was  sus- 
tained?      If   not,    when    did    permanent    total    disability 

ensue? 18.  Did  he  return  to  work  before  permanent 

total  disability  ensued? When? How  long  did 

he  work? At  what  weekly  wage? 19.  What 

impairment  of  earning  capacity  resulted  from  injury  and  lasted 
through  the  period  last  mentioned?    Answer:  He  was  able  to 

earn per  cent.,  and  no  more,  of  the  wage  he  was  earning 

when  injured. 

20.  Was  deceased  a  member  of  any  lodge? If  so,  what  lodge 

or  lodges? Did  deceased  carry  any  accident  insur- 
ance?      If  so,  how  much  and  in  what  companies? 

21.  Describe  the  injury , 


15A11  questions  in  this  blank  should  be  answered,  or  if  any  ques- 
tion can  not  be  answered,  reason  for  not  answering  should  be  given. 
Fill  out  blank  in  ink,  using  pen  or  typewriter. 


499  °HI°  ACT.  §  204 

22.  Where  did  injured  person  go  after  accident? 

23.  Names  of  attending  physicians: 

Name Address 

24.  Date  of  accident? Hour  of  day? M. 

25.  Give  full  details  as  to  how  accident  occurred? 

26.  What,   in   your  estimation,   was   the   immediate   cause   of   the 

injury? 27.  Was  accident  caused  by  fault  of  any 

fellow  workman  of  injured  person If  so,  give  name 

Address   

28.  Did  accident  happen  on  the  premises,  or  at  the  plant,  or  in  the 
course  of  his  employment,  or  away  from  the  plant? 

29.  If  away  from   the  plant,  state   where  and  by  whom  he  was 

injured? 30.  Give  names  of  two  other  witnesses: 

Name Address 

Name Address 

31.  Was  accident  caused  by  fault  of  machines  or  devices? 

32.  Name  of  machine,  device,  etc.,  causing  accident 

Condition 33.  Were  all  safeguards  in  their  places 

at  time  of  accident? 34.  If  any  safeguard  was  removed, 

by  whom  was  it  removed? 

35.  Manager  of  said  plant: Address 

36.  Foreman  or  superintendent  in  charge  of  department  where  de- 
I          ceased  was  injured:  Address 

In  the  presence  of: Signed 

OATH. 

State  of  Ohio, - County,  ss: 

Before  me, ,  a  notary  public  in  and  for  said 

county,  on  this day  of ,  191__,  personally  appeared 

who,  first  being  duly  sworn,  declared  that  the 

facts  set  forth  in  the  foregoing  certificate,  which he  signed  in 

my  presence,  are  true. 

(Seal.)  

Notary  Public. 
My  commission  expires __ 


GROUP  IV. 
FORMS  IN  CASES  OF  DEATH  WITHOUT  DEPENDENTS. 

§  205.  Forms  to  obtain  money  to  pay  for  medical, 
hospital  and  funeral  expenses  only. 

Where  a  workman  (or  woman)  covered  by  the  act 
receives  an  injury  causing  death  within  two  years  after 
the  accident  and  leaves  no  dependents,  then  the  disburse- 


§  206      WORKMEN'S  COMPENSATION  AND  INSURANCE.      500 

ments  that  shall  be  made  on  account  of  such  an  accident 
shall  be  limited  to  any  sum  not  to  exceed  two  hundred 
dollars  ($200)  for  medical,  hospital  and  nurse  services 
and  medicines,  and  to  any  sum  not  to  exceed  one  hun- 
dred and  fifty  dollars  for  funeral  expenses,  as  the  Lia- 
bility Board  of  Awards  may  deem  proper.  See  §  28,  par. 
1,  23  and  24  of  the  act. 

In  this  group  of  cases  the  forms  to  be  filled  out  and 
filed  with  the  board  are*  (a)  Application  for  money 
paid  for  medical,  nurse  and  hospital  services  and  medi- 
cines and  for  funeral  expenses;  (b)  undertaker's  certifi- 
cate of  death  and  cost  bill;  (c)  witness's  certificate  in 
proof  of  death;  (d)  physician's  certificate  of  death;  (e) 
employer's  certificate  and  oath;  (f)  physician's  fee  bill; 
(g)  druggist's  cost  bill;  (h)  medical  fee  bill  and  hospital 
charges,  and  (i)  certificate  and  oath  of  lay  witness.  It 
is  the  duty  of  the  officer  taking  the  acknowledgment  to 
see  that  the  blanks  are  properly  filled  and  the  acknowl- 
edgment properly  taken. 

§  206.     Form  of  application  for  money   paid   for 
medical,  nurse  and  hospital  services  and  medicines  and 
for  funeral  expenses,  without  award,  (a)16 
State  Liability  Board  of  Awards, 

Columbus,  Ohio, 

I, of 

(Name  of  Applicant)  (Post  Office) 

,  County  of ,  State  of  Ohio. 

(Street  and  Number) 


16A11  the  questions  in  this  blank  form  must  be  answered,  or 
if  any  question  can  not  be  answered,  reason  for  not  answering  must 
be  given.  This  requirement  must  be  complied  with.  Otherwise,  the 
blank  will  be  returned  for  correction.  While  all  the  information 
asked  for  may  not  be  necessary  to  make  up  full  proof  in  every  in- 
stance, yet  it  is  necessary  for  other  requirements  of  this  department. 

Application  for  awards  in  all  cases  of  injury  resulting  in  death 
must  be  made  by  the  executor  or  administrator  or  beneficiary  of  the 
deceased,  or  by  the  attending  physician  or  undertaker  where  there  is 
no  beneficiary,  NOT  LESS  THAN  TWO  WEEKS  NOR  MORE  THAN 
SIX  MONTHS  after  the  death  of  the  injured  employe. 

Fill  out  blank  in  ink,  using  pen  or  typewriter. 


5OI  OHIO   ACT.  §  2O6 

do  hereby  make  application  for  money  to  pay  for  medical,  nurse  and 
hospital    services   and    medicines    and    for   funeral    expenses    for 

of ,  State  of  Ohio,  who  was 

(Killed  or  Injured) 

while  in  the  employ  of whose  plant  is  situated  at 

,  County  of ,  State  of  Ohio,  and  who  died  at 

o'clock M.  on  the day  of ,  191 

My  relation  to  deceased  is 

The  reasons  why  this  application  is  made  by  me  and  not  by 

another  are : 

(Answer  must  be  full  and  complete) 


There  has  been  incurred  for  said  services  and  medicines  for 
treatment  for  the  injury  herein  described  and  for  funeral  expenses 
the  following  bills: 

Date        To  whom  Paid  or  Due  Item  Amount    Bills  Paid 

(Yes  or  No) 


I  enclose  herewith  all  of  the  above  bills  properly  made  out, 
sworn  to,  and,  if  paid,  properly  receipted. 

1.  Age? Sex Color? Place 

of  birth? Married,  single  or  divorced? 

Wife  or  husband  living? How  many  children  liv- 
ing  Their  ages? 

DECEASED  HAD  NO  DEPENDENTS. 

2.  What  weekly  wage  was  deceased  receiving  at  the  time  of  injury? 

$ 3.  How  long  had  deceased  been  receiving  such 

wages 4.  Had  deceased  any  other  income? 

If  so,  how  much  and  from  what  source  derived? 

5.  What  work  was  deceased  engaged  in  when  injured? 

6.  How  long  had  deceased  been  doing  this  work? 

7.  Was  this  his  regular  employment? 8.  If  not,  what 

was  his  regular   employment? 9.  When   did  de- 
ceased enter  employment  of  present  employer? 

10.  With  whom  was  he  employed  previous  to  this?  Name 

Address 11.  How  long? 12.  Was  de- 
ceased skilled  in  the  labor  performed  when  injury  was  susr 
tained? 

13.  How  long  did  disability  caused  by  injury  last  before  death 

ensued? 14.  State  if  there  was  partial  recovery 

and  how  long  it  lasted 

15.    Did  deceased  return  to  work? —          16.  How  long  did 


§  206      WORKMEN'S  COMPENSATION  AND  INSURANCE.      502 

deceased  remain  at  work? 17.  At  what  weekly 

wage?  

18.     When  at  work  he  was  able  to  earn per  cent,  of  the 

wages  received  before  injury,  and  no  more.  This  statement  is 
based  upon  decedent's  actual  earning  capacity,  and  not  merely 
upon  wages  received.  19.  Did  deceased  receive  any  compensa- 
tion from  the  State  Insurance  Fund? 20.  How 

much? 21.  Describe  the  injury  which  caused  death 

of  deceased— 


22.  Where  was  deceased  taken  after  accident? 

23.  Names  of  attending  physicians: 

Ndme Address 

Name Address 

24.  Name  of  undertaker Address 

25.  Who  furnished  medicines? Address 

26.  Date  of  accident Hour  of  day M. 

27.  State  clearly  the  manner  in  which  accident  occurred 


28.  Was  accident  caused  by  fault  of  fellow  workman? 

29.  Did  accident  happen  on  the  premises,  or  at  the  plant,  or  in 
the  course  of  employment  of  deceased,  or  away  from  the  plant 

of  the  employer? 30.  If  away  from  the  plant,  state 

when,  how  and  by  whom  injured 

31.    Was  deceased  acting  under  direction  of  a  superintendent? 


31.  Was  accident  caused  by  fault  of  machines  or  devices? 

32.  Name  of  machine,  device,  etc.,  causing  accident? 

Condition    

33.  Were  all  safeguards  in  their  places  at  the  time  deceased  was 
hurt?    

34.  If  any  safeguard  was  removed,  did  deceased  remove  it  or  was  it 
removed  by  any  fellow  workman  of  deceased,  or  superintend- 
ent or  foreman? 

35.  Name  of  manager  of  said  plant Address 

36.  Name  of  foreman  or  superintendent  in  charge  of  department  in 

which  deceased  was  injured 

Address   

37.  Name  of  three  witnesses  who  witnessed  the  accident : 

Name Address 

Name Address 

Name Address 

88.    Was  deceased  a  member  of  any  lodge? If  so,  what 


503  OHIO    ACT.  §207 

lodge  or  lodges? 39.  Did  deceased  carry  any  acci- 
dent insurance? If  so,  how   much  and   in   what 

companies? 

Witness: 

(Signed) __ 


OATH. 

State  of  Ohio, County,  ss : 

Before  me,  a  notary  public  in  and  for  said  county,  on  this 

day  of ,  191__,  personally  appeared ,  the 

above  named  applicant,  who  being  duly  sworn,  declared  that  the 
facts  set  forth  in  the  foregoing  application  are  true. 


Notary  Public. 
(Seal) 

My  commission  expires 


§  207.  Form  of  undertaker's  certificate  of  death  and 
cost  bill,  (b) 

State  of  Ohio, County,  ss: 

,   of , 

(Name  of  undertaker.) 
says  that  he  is  a  duly  licensed  undertaker  of ,  Ohio,  at 

;    that  as  such  he  was  required  on 

(Street  and  number.) 

the day  of ,  191 ,  to  prepare  the  dead  body 

of for  burial;   that  he  placed  said  body  in  a  coffin  and 

placed  said  coffin,  containing  the  said  body,  in  a in 

cemetery  at ,  State  of 

Affiant  further  says  that  the  following  is  a  true  and  accurate 
account  of  articles  furnished  and  services  rendered  in  connection 
with  the  preparation  and  burial  of  said  body,  and  the  charges  there- 
for; that  such  articles  and  services  were  required  and  furnished  on 
account  of  the  purpose  above  mentioned  and  the  same  were  neces- 
sary therefor,  and  that  the  charges  are  reasonable  and  not  more 
than  he  charges  for  like  services  in  other  instances. 

Date.  Items.  Amount. 


(Items  should  be  written  out  fully.    Do  not  abbreviate.) 

(Signature  of  Affiant.) 


§  208      WORKMEN'S  COMPENSATION  AND  INSURANCE.      504. 

OATH. 

Sworn  to  before  me  and  subscribed  in  my  presence,  this 

day  of ,  191— 

Notary  Public. 
(Seal.)  My  commission  expires 


§  208.     Form  of  lay  witness's  certificate  in  proof  of 
death,  (c) 

1.  Name  of  deceased  in  full 

Sex Color 

2.  How  long  have  you  known  the  deceased 

3.  (a)  Age  at  death years,     (b)  Names  and  ages  of 

children 

4.  Place  of  death  (Give  street  number,  city  or  town,  and  state) : 
Street City  or  town State 

5.  (a)  Occupation  at  the  time  of  death 

(b)  Nationality   

'    6.    Date  when  you  first  saw  deceased  after  injury 

7.  Date  when  you  last  saw  deceased  after  injury 

8.  Date  of  death 

9.  (a)  What  caused  death? 

(b)  How  long  after  injury? 

10.  Did  you  see  the  body  of  the  deceased  and  did  you  identify  it  as 

that  of  the  injured  workman  at 

while  in  the  employ  of 

of    

11.  Was  a  coroner's  inquest  held Name  of  coroner 

Address   

12.  What  physician  attended  deceased? 

Name Address 

Name Address 

13.  Was  health  of  deceased  impaired  by  intemperance  or  any  perni- 
cious habit? If  so,  what? 

14.  Have  you  any  interest  in  this  claim? 

15.  Have  you  stated  all  the  material  facts  connected  in  any  way 
with  this  death? 

16.  So  far  as  you  know  is  there  any  reason  to  suspect  that  this  case 
is  not  a  perfectly  fair  one,  and  above  all  suspicion  of  conceal- 
ment of  necessary  facts  and  information? 

Dated  this day  of ,  191— 

<i  Attending  Physician. 


5°5  OHIO  ACT.  §  209 

OATH. 

State  of  Ohio, County,  ss: 

On  this day  of ,  A.  D.  191__,  personally 

appeared  before  me,  the  above  named ,  physician  in  reg- 
ular standing,  and  made  oath  that  the  answers  by  him  above  made 
and  subscribed  are  true. 

Notary  Public. 
My  commission  expires— 


§  209.     Form  of  physician's  certificate  in  proof  of 
death,  (d)17 

1.  Name  of  the  deceased  in  full 

Sex Color 

2.  (a)  How  long  have  you  known  the  deceased 

(b)  How  long  have  you  been  medical  adviser  of  deceased? 

3.  (a)  Age  at  death years,     (b)  Married  or  single 

(c)  Names  and  ages  of  children 


4.  Place  of  death  (Give  street  number,  city  or  town,  and  state) : 
Street City  or  town State 

5.  (a)  Occupation  at  the  time  of  death 

(b)  Nationality   

6.  Date  of  your  first  visit  or  prescription 

7.  Date  of  your  last  visit 

8.  Date  of  death 

9.  (a)  State  the  remote  cause  of  death__ 


(b)  State  explicitly  the  immediate  cause  of  death 

10.  Did  you  see  the  body  of  the  deceased  and  did  you  identify  it  as 

that  of  the  injured  workman  at 

while  in  the  employ  of ,  of ? 

11.  Was  a  coroner's  inquest  held? Name  of  coroner 

Address 

12.  Was   deceased   attended  by  any  other  physician  during  last 
illness?    If  so,  state  his  name  and  address 

13.  Was  health  of  deceased  impaired  by  intemperance  or  any  perni- 
cious habit? If  so,  what? 

14.  Have  you  any  interest  in  this  claim? 


i7To  be  filled  out  by  the  attending  physician  of  deceased. 
Fill  in  all  blanks  with  ink,  using  pen  or  typewriter. 


§  2io     WORKMEN'S  COMPENSATION  AND  INSURANCE.      506 

15.  Have  you  stated  all  the  material  facts  connected  In  any  way 
with  this  death? 

16.  So  far  as  you  know  is  there  any  reason  to  suspect  that  this  case 
is  not  a  perfectly  fair  one,  and  above  all  suspicion  of  conceal- 
ment of  necessary  facts  and  information? 

Dated  this —day  of__  .,  191__ 


Attending  Physician. 
Degree? Year College 

OATH. 

State  of  Ohio, County,  ss: 

On  this day  of ,  A.  D.  191—,  person- 
ally appeared  before  me,  the  above  named ,  physician 

in  regular  standing,  and  made  oath  that  the  answers  by  him  above 
made  and  subscribed  are  true. 


Notary  Public. 
My  commission  expires 


§  210.     Form      of      employer's      certificate      and 
oath,  (e)18 

State  Liability  Board  of  Awards,  Columbus,  Ohio. 

1.  Name  of  employer Address 

2.  Nature  of  business 

3.  Name  of  deceased 4.  Age Sex 

Color Place  of  birth How  many  chil- 
dren living    Their  ages? 

DECEASED  HAD  NO  DEPENDENTS. 

5.  What  weekly  wage  was  deceased  receiving  at  time  of  injury? 

6.  How  long  had  he  been  receiving  such  wages? 

7.  What  work  was  he  engaged  in  when  injured? 

8.  How  long  had  he  been  doing  this  work? 9.  Was  this 

his  regular  employment? If  not,  what  was  his  regular 

employment? 10.  Was  he  skilled  in  the  labor  being 

performed  when  injury  happened? 11.  When  did  he 

enter  your  employment? 12.  With  whom  was  he 


is  All  the  questions  in  this  blank  form  must  be  answered,  or  if 
any  question  can  not  be  answered,  reason  for  not  answering  must 
be  given.  This  requirement  must  be  complied  with.  Otherwise, 
the  blank  will  be  returned  for  correction.  While  all  the  informa- 
tion asked  for  may  not  be  necessary  to  make  up  full  proof  in  every 
instance,  yet  it  is  necessary  for  other  requirements  of  this  depart- 
ment. 

Fill  out  blank  in  ink,  using  pen  or  typewriter. 


507  OHIO   ACT.  §  2IO 

employed  previous  to  this?    Name 

Address How  long    

13.     How   long  did  disability   caused   by   injury   last  before   death 

ensued? 14.  State  if  there  was  partial  recovery 

and  how  long  it  lasted? 15.  Did  deceased  return 

to  work? How  long  did  he  remain  at  work  before  death? 

At  what  weekly  wage? 16.  What  impairment 

of  earning  capacity  resulted  from  injury  and  lasted  from  date 
of  return  to  work  until  death  of  deceased?  Answer:  He  was 
able  to  earn per  cent.,  and  no  more,  of  his  former  wage. 

17.  Was  deceased  a  member  of  any  lodge? ^  If  so,  what  lodge 

or  lodges? Did  deceased  carry  accident  insurance? 

If  so,  how  much  and  in  what  companies? 

18.  Give  accurate  description  of  injury  which  caused  death 

19.  Where  was  deceased  taken  after  accident?     (If  to  a  hospital, 

give  name  and  address) 20.  Who  furnished 

medicines? Address 

21.  Names  of  standing  physicians: 

Name Address 

Name : Address 

22.  Name  of  undertaker Address 

23.  Date  of  accident Hour  of  day M. 

24.  Place  of  accident,  P.  O Street  and  No 

County  of ,  Ohio, Building. 

25.  Give  full  details  as  to  how  accident  happened 

26.  Was  accident  caused  by  fault  of  fellow  workman? 

27.  Did  accident  happen  on  the  premises,  or  at  the  plant,  or  in  the 

course  of  employment,  or  away  from  plant? 28.  If 

away  from  plant,  state  when,  how  and  by  whom  injured? 

29.  Names  and  addresses  of  witnesses : 

Name Address 

Name Address 

Name Address 

30.  Was  accident  caused  by  fault  of  machine  or  devices? 

31.  Name  of  machine,  device,  etc.,  causing  accident 

Condition 32.  Were  all  safeguards  in  their  places  at 

time  of  accident? 33.    If  any  safeguard  was  removed,  by 

whom  was  it  removed? 34.  Manager  of  said  plant: 

Name Address 

35.    Foreman  or  superintendent  In  charge  of  department  where  de- 
ceased was  injured: 

Name Address 

Witness: Signed 

Employer. 

By 

(Name  and  official  position  of  person  making  this  report.) 


§  2ii      WORKMEN'S  COMPENSATION  AND  INSURANCE.      508 

OATH. 

State  of  Ohio, County,  ss: 

Before  me,  a  notary  public  in  and  for  said  county,  on  the 

day  of ,  191 — ,  personally  appeared , 

who,  first  being  duly  sworn,  declared  that  the  facts  set  forth  in  the 
foregoing  certificate,  to  which  he  has  signed  his  name  in  my  pres- 
ence are  true. 

(Seal.) 

Notary  Public. 
My  commission  expires 

§  211.     Form  of  physician's  fee  bill,  (f) 

The  following  is  an  itemized  account  of  professional  services 

rendered  in  connection  with  the  treatment  of  injury  to 

(Name  of  patient.) 

of together  with  charges  therefor: 

(Full  address  of  patient.) 

Date.  Items.  Amount. 


(Items  should  be  written  out  fully.    Do  not  abbreviate.) 

(Signature  of  Affiant.) 


OATH. 

State  of  Ohio, County,  ss: 

,  being  first  duly  cautioned  and  sworn, 

says  that  he  treated  the  injury  to  the  above  named  person  and  that 
his  services  were  required  and  furnished  on  account  of  the  purpose 
above  mentioned,  and  the  same  were  necessary  therefor,  and  that  the 
charges  are  reasonable  and  not  more  than  he  charges  for  like 
services  in  other  instances. 

Sworn  to  before  me  and  subscribed  in  my  presence,  this 

day  of ,  191 

(Seal)  

Notary  Public. 
My  commission  expires 

§  212.     Form  of  druggist's  cost  bill,  (g) 

The  following  is  an  itemized  account  of  medicines  furnished 
and  services  rendered  in  connection  with  the  treatment  of  injury  to 


5O9  OHIO    ACT.  §  213 

of ,  together  with  charges 

(Name  of  patient.)      (Full  address  of  patient.) 
therefor: 

Date.  Items.  Amount. 


(Items  should  be  written  out  fully.     Do  not  abbreviate.) 

(Signature  of  Affiant.) 
OATH. 

State  of  Ohio, County,  ss: 

,  being  first  duly  cautioned  and  sworn,  says 

that  the  above  articles  or  services  were  required  and  furnished  on 
account  of  the  purpose  above  mentioned,  and  the  same  were  neces- 
sary therefor,  and  that  the  charges  are  reasonable  and  not  more  than 
he  charges  for  like  services  in  other  instances. 

Sworn  to  before  me  and  subscribed  in  my  presence,  this 

day  of ,  191—. 

(Seal.)  

Notary  Public. 
My  commission  expires , 

§  213.    Form    of    medical    fee    bill    and    hospital 
charges,  (h) 

The  following  is  an  itemized  account  of  medicines  furnished  and 
services  rendered  in  connection  with  the  treatment  of  injury  to 

,  of ,  together  with  charges 

(Name  of  patient.)  (Full  address  of  patient.) 

therefor : 

Date.  Items.  Amount. 


(Items  should  be  written  out  fully.    Do  not  abbreviate.) 

(Signature  of  Affiant.) 


OATH. 

State  of  Ohio, County,  ss: 

,  being  first  duly  cautioned  and  sworn, 

says  that is of , 

(Official  position.)  (Name  of  hospital.) 


§  214      WORKMEN'S  COMPENSATION  AND  INSURANCE.      510 

,  and  as  such  duly  authorized  in  the  premises;  that  the 

(Address.) 

above  articles  or  services  were  required  and  furnished  on  account  of 
the  purpose  above  mentioned,  and  the  same  were  necessary  therefor, 
and  that  the  charges  are  reasonable  and  not  more  than  is  charged 
by  affiant  for  like  services  in  other  instances. 

Sworn  to  before  me  and  subscribed  in  my  presence,  this 

day  of ,  191 

(Seal.)  

Notary  Public. 
My  commission  expires 

§  214.     Form  of  certificate  and  oath  of  lay  witness. 
CO19. 

State  Liability  Board  of  Awards,  Columbus,  Ohio. 

1.  Name  of  witness  making  this  report Address 

2.  What  is  your  present  occupation? Name  of  employer 

Address   

I    3.    Are  you  related  in  any  way  to  injured  person? If  so,  in 

what  way? 4.  What  interest,  if  any,  have  you  in 

this  claim? 

5.  Give  name  of  deceased Age Color 

Nationality   

DECEASED  HAD  NO  DEPENDENTS. 

6.  What  weekly  wages  was  deceased  receiving  at  time  of  injury? 

7.  What  work  was  deceased  engaged  in  when  injured? 

How  long  had  he  been  doing  this  work? 

8.     Was  this  his  regular  employment? If  not,  what  was  his 

regular  employment? 9.  Was  he  skilled  in  the  work 

being  done  at  time  of  accident? 10.    How  long  did  dis- 
ability caused  by  injury  last  before  death  ensued? 

11.     State  if  there  was  a  partial  recovery  and  how  long  it  lasted 

_1 12.  Did  deceased  return  to  work? 13.  How 

long  did  he  remain  at  work? At  what  weekly  wage? 

14.  When  at  work  he  was  able  to  earn per 

i  cent,  of  the  wages  received  before  injured  and  no  more.  This 
statement  is  based  upon  the  actual  earning  capacity  of  deceased 
and  not  merely  upon  the  wages  received. 

15.     Did  deceased  receive  any  compensation  from  the  Slate  Insur- 
ance Fund?—  How  much?__.  16.  Was  deceased  a 


i»All  questions  in  this  blank  should  be  answered,  or  if  any 
question  can  not  be  answered,  reason  for  not  answering  should  be 
given. 

Fill  out  blank  in  ink,  using  pen  or  typewriter. 


OHIO   ACT.  §  214 

member  of  any  lodge? If  so,  what  lodge  or  lodges? 

17.  Did  deceased  carry  any  accident  insurance? If  so,  how 

much  and  in  what  companies? 

18.  Describe  injury  which  caused  death  of  deceased 

19.  Where  was  deceased  taken  after  accident?     (If  to  a  hospital, 
give  name  and  address) 

20.  Who  furnished  medicines? 

Name Address 

21.  Names  of  attending  physicians: 

Name Address 

Name Address 

22.  Name  of  undertaker Address 

23.  Date  of  accident Hour  of  day M. 

24.  Did  you  witness  the  accident? 25.  Give  full  details  as  to 

how  accident  occurred 26.  What,  in  your  esti- 
mation, was  the  immediate  cause  of  the  injury? 

27.  Was  accident  caused  by  fault  of  any  fellow  workman  of  de- 
ceased?    If  so,  give  name? 28.  Did  acci- 
dent occur  on  the  premises,  or  at  the  plant,  or  in  the  course  of 

his  employment,  or  away  from  the  plant? 29.  If 

away  from  plant,  state  where  and  by  whom  he  was  injured? 

30.  Give  names  of  two  other  witnesses: 

Name Address 

Name Address 

31.  Was  accident  caused  by  fault  of  machines  or  devices? 

32.  Name  of  machine,  device,  etc.,  causing  accident 

Condition 33.  Were  all  safeguards  in  their  places  at 

time  of  accident? 34.  If  any  safeguard  was  removed,  by 

whom  was  it  removed? 

35.  Manager  of  said  plant Address 

36.  Foreman  or  superintendent  in  charge  of  department  where  de- 
ceased was  injured: 

Name Address 

In  the  presence  of: Signed 

OATH. 

State  of  Ohio, County,  ss: 

Before  me, ,  a  notary  public  in  and  for  said 

county,  on  this day  of ,  191—,  personally  ap- 
peared   who,  first  being  duly  sworn,  declared  that 

the  facts  set  forth  in  the  foregoing  certificate,  which he  signed 

in  my  presence,  are  true. 

(Seal.)  

Notary  Public. 

My  commission  expires 


§  215      WORKMEN'S  COMPENSATION  AND  INSURANCE.      512 

GROUP  v. 

FORMS  IN  CASES  OF  DEATH  WITH  DEPENDENTS. 

§  215.  Form  of  procedure  to  obtain  compensation 
and  money  to  pay  for  medical,  hospital  and  funeral  ex- 
penses. 

Where  a  workman  (or  work-woman),  covered  by 
the  act  has  received  an  injury  causing  death  within  two 
years  after  the  accident  and  left  dependents,  the  dis- 
bursements to  the  dependents  on  account  of  such  an  ac- 
cident are  limited  to  any  sum  not  to  exceed  two  hun- 
dred dollars  ($200)  for  medical,  nurse  and  hospital  serv- 
ices and  medicines  and  to  any  sum  not  to  exceed  one 
hundred  and  fifty  dollars  ($150)  for  funeral  expenses  as 
the  Liability  Board  of  Awards  may  deem  proper  and 
compensation  at  662-3  per  cent,  of  his  average  weekly 
wage  for  six  years. 19a 

In  this  group  of  cases  the  forms  prescribed  by  the 
board  are  as  follows :  (a)  Application  for  money  paid  for 
medical,  nurse  and  hospital  services  and  medicines  and 
for  funeral  expenses;  (b)  proof  of  dependents;  (c)  un- 
dertaker's certificate  of  death  and  cost  bill;  (d)  lay  wit- 
ness's certificate  in  proof  of  death;  (e)  physician's  certifi- 
cate in  proof  of  death;  (f)  employer's  certificate  and 
oath;  (g)  physician's  fee  bill;  (h)  druggist's  cost  bill;  (i) 
medical  fee  bill  and  hospital  bill;  (j)  certificate  and  oath 
of  lay  witness.  It  is  the  duty  of  the  officer  taking  the 
acknowledgment  to  these  forms  to  see  that  they  are 
properly  filled  out  and  the  acknowledgment  properly 
taken. 

§  216.  Form  of  application  for  money  paid  for 
medical,  nurse  and  hospital  services  and  medicines  and 
for  funeral  expenses,  with  awards.20  (a) 

!S>a  See  ante  §  171  and  thereunder  §  28,  par.  2,  3,  and  §§  23,  24,  29, 
30  and  31. 

20A11  the  questions  in  this  blank  form  must  be  answered,  or  if 
any  question  can  not  be  answered,  reason  for  not  answering  must 


513  OHI°  ACT.  §216 


State  Liability  Board  of  Awards,  Columbus,  Ohio. 

I,  ------------------  ,  of  _____________________________________  , 

(Name  of  Applicant)  (Post  Office)     (Street  and  Number) 

County  of  ----------------  ,  State  of  Ohio,  do  hereby  make  applica- 

tion for  money  to  pay  for  medical,  nurse  and  hospital  services  and 
for  funeral  expenses  for  __________________  of  ___________________  , 

State  of  Ohio,  who  was  __________________  while  in  the  employ  of 

(Killed  or  Injured) 
------------  whose  plant  is  situated  at  __________  ,  County  of  ________  , 

Ohio,  and  who  died  at  ______  o'clock  ______  M.  on  the  ______  day  of 

______________  ,  191__. 

I  also  make  application  for  an  award  as  provided  in  Section  28 
of  the  Act  creating  the  State  Insurance  Fund.    This  application  is 
made  for  the  benefit  of  the  dependents  hereinafter  named  and  is 
made  by  me  and  not  by  another  upon  the  authority  and  for  the  rea- 
sons here  given  :  ------------------------------------------------- 

(Here  state  fully  relationship  of  applicant  to  deceased,  legal  status 
and  other  reasons  why  particular  person  is  applicant  herein.) 

The  following  persons  were  partly  or  wholly  dependent  upon 
deceased  at  the  time  of  his  death: 

Relation    Age    Place  of  Birth 
Name  _.  __| 


Address    ---------------------------  1 

Partly  or  wholly?  __________  In  what  amount  per  week? 

In  money  or  other  aid?  __________________  What? 

Name  ------------------------------  1 


Address    ---------------------------  1 

Partly  or  wholly?  __________  In  what  amount  per  week?    $  ---------- 

In  money  or  other  aid?  ------------------  What?  ------------------ 

There  has  been  incurred  for  said  services  and  medicines  for 


be  given.  This  requirement  must  be  complied  with.  Otherwise, 
the  blank  will  be  returned  for  correction.  While  all  the  informa- 
tion asked  for  may  not  be  necessary  to  make  up  full  proof  in  every 
instance,  yet  it  is  necessary  for  other  requirements  of  this  depart- 
ment. 

Fill  out  blank  in  ink,  using  pen  or  typewriter. 

Application  for  awards  in  all  cases  of  injury  resulting  in  death 
must  be  made  by  the  executor  or  administrator  or  beneficiary  of  the 
decedent,  or  by  the  attending  physician  or  undertaker  where  there  is 
no  beneficiary,  NOT  LESS  THAN  TWO  WEEKS  NOR  MORE  THAN 
SIX  MONTHS  after  the  death  of  the  injured  employe. 

33— BOYD  W  C 


§  216     WORKMEN'S  COMPENSATION  AND  INSURANCE.      514 

treatment  for  the  Injury  herein  described  and  for  funeral  expenses 
the  following  bills: 

Date     To  Whom  Paid  or  Due        Item  Amount    Bill  Paid 

(Yes  or  No) 


I  enclose  herewith  all  of  the  above  bills  properly  made  out, 
sworn  to,  and,  if  paid,  properly  receipted. 

1.  Deceased's  age Sex Color Place  of  birth 

Married,  single  or  divorced? Wife  or  husband  living? 

2.  What  weekly  wage  was  deceased  receiving  at  time  of  injury? 

3.  How  long  had  deceased  been  receiving  such  wages? 

4.  Had    deceased    any    other    income? If    so, 

how  much  and  from  what  source  derived? 5.  What 

work  was  deceased  engaged  in  when  injured? 6.  How 

long  had  deceased  been  doing  this  work? 7.  Was  this 

his  regular  employment? If  not,  what  was  his  regular 

employment? 8.  Had  deceased  ever  received  any 

other  injury? If  so,  when  and  where  and  what  was  its 

nature? 9.  Had  deceased  any  recent  sickness? 

If  so,  describe  it  and  give  name  of  attending  physician 

10.  Had  deceased  ever  had  a  serious  sickness? If  so,  what 

was  it  and  how  long  did  it  last? 

Give  names  of  attending  physicians: 

Name Address 

Name Address 

11.  Was  deceased  in  good  health  at  the  time  of  this  accident? 

12.  When  did  deceased  enter  employ  of  present  employer? 

13.  With  whom  was  he  employed  previous  to  this?    Name 

Address How  long 

14.  Was  deceased  skilled  in  the  labor  being  performed  when  injury 

•was  sustained? 15.  How  long  did  disability  caused  by 

injury  last  before  death  ensued? 16.  State  if  there 

was  partial  recovery  and  how  long  it  lasted? 

17.  Did  deceased  return  to  work? How  long  did  deceased 

remain  at  work? At  what  weekly  wage? 

18.  When  at  work  he  was  able  to  earn per  cent,  of  the 

wages  received  before  injury,  and  no  more.     This  statement  is 
based  upon  the  actual  earning  capacity  of  deceased  and  not 
merely  upon  wages  received.     19.     Did   deceased   receive   any 

compensation  from  the  State  Insurance  Fund? 20.  How 

much?    $ 

21.  Describe  the  injury  which  caused  death  of  deceased 

22.  Where  was  deceased  taken  after  accident 


515  OHIO    ACT.  §  2l6 

23.  Names  of  attending  physicians: 

Name Address 

Name Address 

24.  Who  furnished  medicines? Address 

25.  Name  of  undertaker Address 

26.  Date  of  accident Hour  of  day M. 

27.  State  clearly  the  manner  in  which  accident  occurred 

28.  Was  accident  caused  by  fault  of  fellow  workman? 

29.  Did  accident  happen  on  the  premises,  or  at  the  plant,  or  in  the 
course  of  employment  of  deceased,  or  away  from  the  plant  of 

the  employer? 30.  If  away  from  the  plant,  state 

when,  how  and  by  whom  injured? 31.  Was  de- 
ceased acting  under  direction  of  a  superintendent? 

32.  Was  accident  caused  by  fault  of  machines  or  devices? 

33.  Name  of  machine,  device,  etc.,  causing  accident 

Condition? 34.  Were  all  safeguards  in  their 

places  at  the  time  deceased  was  hurt? 35.  If  any  safe- 
guard was  removed,  did  deceased  remove  it  or  was  it  removed 
by  any  fellow  workman  of  deceased,  or  superintendent  or  fore- 
man?   _ 

36.  Name  of  manager  of  said  plant Address 

37.  Name  of  foreman  or  superintendent  in  charge  of  department  in 
which  deceased  was  injured Address 

38.  Names  of  three  witnesses  who  witnessed  the  accident: 

Name Address 

Name Address 

Name Address 

39.  Was  deceased  a  member  of  any  lodge? If  so,  what  lodge 

or  lodges? 40.  Did  deceased  carry  any  accident 

insurance? If  so,  how  much  and  in  what  companies? 


Witness:    Signed   

Applicant. 
OATH. 

State  of  Ohio, County,  ss: 

Before  me,  a  notary  public  in  and  for  said  county,  on  this 

day  of ,  191__,  personally  appeared , 

the  above  named  applicant,  who,  being  duly  sworn,  declared  that  the 
facts  set  forth  in  the  foregoing  application  are  true. 

(Seal.)  

Notary  Public. 

My  commission  expires — 

(Note — The  official  taking  this  acknowledgment  is  cautioned  to 
see  that  this  blank  is  properly  filled  out  and  that  the  acknowledg- 
ment is  properly  taken.) 


§  217      WORKMEN'S  COMPENSATION  AND  INSURANCE.      516 

OATH. 

(Additional  oath  to  be  made  by  dependents  capable  of  understand- 
ing the  nature  of  an  oath.) 

State  of  Ohio, County,  ss: 

Before  me,  a  notary  public  in  and  for  said  county,  on  this 

day  of ,  191 — ,  personally  appeared 

and and 

and and 

being  all  of  the  above  named  dependents  capable  of  understanding 
the  nature  of  an  oath,  who,  being  first  duly  sworn,  declared  that  the 
facts  set  forth  in  this  application  are  true. 


Sworn  to  before  me  and  subscribed  in  my  presence  on  this 

day  of ,  191__. 

(Seal.)  

Notary  Public. 
My  commission  expires 

§  217.    Form  of  proof  of  dependents,  (b) 

State  of  Ohio, County,  ss: 

On  this day  of ,  191__,  personally  appeared 

before  me,  a within  and  for  the  county  aforesaid, 

,  who  being  duly  sworn  according  to  law,  de- 
clares that he  resides  in ,  County  of , 

State  of  Ohio,  and  that he  was  acquainted  with 

of ,  who  died  on ,  191__,  as  the  result 

of  an  injury  received  on ,  191 — ,  while  in  the  employ 

of of 

Affiant  also  declares  that he  knows  who  were  dependent 

upon for  support  and  to  what  degree  dependent, 

and  that  they  are  as  follows : 

1.  Name How  dependent? 

Address In  what  degree? 

Relation In  money  or  other  aid? 

Age Birthplace In  what  weekly  amount?  $ 

2.  Name How  dependent? 

Address In  what  degree? 

Relation In  money  or  other  aid? 

Age  __    Birthplace In  what  weekly  amount?  $ 

Affiant  further  declares  that he  has  no  interest  whatever  in 

the  prosecution  of  this  claim. 


(Signature  of  Affiant.) 


5*7  OHIO   ACT.  §  2l8 

OATH. 

Sworn  to  and  subscribed  before  me  this day  of , 

191 —    I  have  no  interest  whatever  in  the  prosecution  of  this  claim. 
(Seal.)  

(Notary  Public.) 
My  commission  expires 

§  218.  Form  of  undertaker's  certificate  of  death  and 
cost  bill,  (c) 

State  of  Ohio, County,  ss: 

of T 

(Name  of  undertaker.) 

says,  that  he  is  a  duly  licensed  undertaker  of , 

Ohio,  at that  as  such  he  was  required 

(Street  and  number.) 

on  the day  of ,  191__,  to  prepare  the  dead 

body  of for  burial;    that  he  placed  said  body  in  a  coffin 

and  placed  said  coffin,  containing  the  said  body,  in  a in 

cemetery  at_: ,  State  of 

Affiant  further  says  that  the  following  is  a  true  and  accurate 
account  of  articles  furnished  and  services  rendered  in  connection 
with  the  preparation  and  burial  of  said  body,  and  the  charges  there- 
fbr;  that  such  articles  and  services  were  required  and  furnished  on 
account  of  the  purpose  above  mentioned  and  the  same  were  neces- 
sary therefor,  and  that  the  charges  are  reasonable  and  not  more 
than  he  charges  for  like  services  in  other  instances. 

Date.  Items.  Amount. 


(Items  should  be  written  out  fully.    Do  not  abbreviate.) 

(Signature  of  Affiant.) 
OATH. 

Sworn  to  before  me  and  subscribed  in  my  presence,  this 

day  of ,  191— 


Notary  Public. 
(Seal.)  My  commission  expires 

§  219.     Form  of  lay  witness's  certificate  in  proof  of 
death,  (d) 

1.    Name  of  deceased  in  full 

Sex__  __Color__        


§  219      WORKMEN'S  COMPENSATION  AND  INSURANCE.      518 

2.  How  long  have  you  known  the  deceased? 

3.  (a)  Age  at  death years,     (b)  Names  and  ages  of 

children    . 


4.  Place  of  death  (Give  street  number,  city  or  town,  and  state)  : 
Street  -------------  City   or   town  ____________  State  ____________ 

5.  (a)  Occupation  at  the  time  of  death  __________________________ 

(b)  Nationality  __________________________ 

6.  Date  when  you  first  saw  deceased  after  injury  ________________ 

7.  Date  when  you  last  saw  deceased  after  injury  ________________ 

8.  Date  of  death  _______________________________________________ 

9.  (a)  What  caused  death?  _____________________________________ 

(b)  How  long  after  injury?  ---------------------------------- 

10.  Did  you  see  the  body  of  the  deceased  and  did  you  identify  it  as 
that  of  the  injured  workman  at  ------------------------------ 

______________  while  in  the  employ  of  ------------------------ 

of    _________________________________________________________ 

11.  Was  a  coroner's  inquest  held?  ________________  Name  of  coroner 

____________________   Address  ________________________________ 

12.  What  physicians  attended  deceased? 

Name  ________________________     Address  ______________________ 

Name  ________________________     Address  ______________________ 

13.  Was  health  of  deceased  impaired  by  intemperance  or  any  perni- 
cious habit?  ____________________  If  so,  what?  _________________ 

14.  Have  you  any  interest  in  this  claim?  _________________________ 

15.  Have  you  stated  all  the  material  facts  connected  in  any  way 
with   this    death?  ____________________________________________ 

16.  So  far  as  you  know  is  there  any  reason  to  suspect  that  this 
case  is  not  a  perfectly  fair  one,  and  above  all  suspicion  of  con- 
cealment of  necessary  facts  and  information?  _________________ 

Dated  this  ____________  day  of  ____________  ,  191— 


Attending  Physician. 
OATH. 

State  of  Ohio,  ------------  County,  ss: 

On  this  ____________  day  of  ____________  ,  A.  D.  191__,  personally 

appeared  before  me,  the  above  named  ----------------  ,  physician  in 

regular  standing,  and  made  oath  that  the  answers  by  him  above 
made  and  subscribed  are  true. 


Notary  Public. 


My  commission  expires. 


519  OHIO   ACT.  §22O 

§  220.    Form  of  physician's  certificate  in  proof  of 
death,     (e)21 

Fill  in  all  blanks  with  ink,  using  pen  or  typewriter. 

1.  Name  of  the  deceased  in  full 

Sex Color 

2.  (a)  How  long  have  you  known  the  deceased? 

(b)  How  long  have  you  been  medical  adviser  of  deceased? 

3.  (a)  Age  at  death years,     (b)  Married  or  single 

(c)  Names  and  ages  of  children.- 


4.  Place  of  death  (Give  street  number,  city  or  town,  and  state) : 

Street    ^ , 

City  or  town . State 

5.  (a)  Occupation  at  the  time  of  death 

(b)  Nationality   

6.  Date  of  your  first  visit  or  prescription 

7.  Date  of  your  last  visit 

8.  Date  of  death 

9.  (a)  State  the  remote  cause  of  death 


(b)  State  explicitly  the  immediate  cause  of  death 

10.  Did  you  see  the  body  of  the  deceased  and  did  you  identify  it  as 

that  of  the  injured  workman  at while  in  the 

employ   of ,   of ? 

11.  Was  a  coroner's  inquest  held? Name  of  coroner 

Address 

12.  Was   deceased   attended   by   any   other   physician   during   last 
illness?    If  so,  state  his  name  and  address 

13.  Was  health  of  deceased  impaired  by  intemperance  or  any  perni- 
cious habit? If  so,  what? 

14.  Have  you  any  interest  in  this  claim? 

15.  Have  you  stated  all  the  material  facts  connected  in  any  way 
with  this  death? 

16.  So  far  as  you  know  is  there  any  reason  to  suspect  that  this 
case  is  not  a  perfectly  fair  one,  and  above  all  suspicion  of  con- 
cealment of  necessary  facts  and  information? 

Dated  this—  —day  of ,  191— 


Attending  Physician. 
Degree? Year College 


21  To  be  filled  out  by  the  attending  physician  of  deceased. 


§  221      WORKMEN'S  COMPENSATION  AND  INSURANCE.      520 

OATH. 

State  of  Ohio, County,  ss: 

On  this day  of ,  A.  D.  191__,  personally 

appeared  before  me,  the  above  named ,  physician  in 

regular  standing,  and  made  oath  that  the  answers  by  him  above 
made  and  subscribed  are  true. 


Notary  Public. 
My  commission  expires 

§  221.     Form      of      employer's      certificate      and 
oath,  (f)22      . 

State  Liability  Board  of  Awards,  Columbus,  Ohio. 

1.  Name  of  employer 

Address   

2.  Nature  of  business 

3.  Name  of  deceased Address  when  living 

4.  Age Sex Color Place  of  birth 

Married,  single,  or  divorced? Wife  or 

husband  living? How  many  children  living? 

Their  ages? Which  of  them  are  dependent  upon 

injured   person  for   support? 

To  what  degree  is  each  dependent? 

5.  What  weekly  wage  was  deceased  receiving  at  time  of  injury? 

6.  How  long  had  he  been  receiving  such  wages? 

7.  What  work  was  he  engaged  in  when  injured? 

8.  How  long  had  he  been  doing  this  work? 

9.  Was  this  his  regular  employment? 

If  not,  what  was  his  regular  employment? 

10.  Was  he  skilled  in  the  labor  being  performed  when  injury 
happened? 11.  When  did  he  enter  your  employ- 
ment?      12.  With  whom  was  he  employed  previous 

to  this? How  long? 

13.    How  long   did  disability  caused  by   injury  last  before   death 

ensued? 14.  State  if  there  was  partial  recovery 

and  how  long  it  lasted? 15.  Did  deceased  return 


22A11  the  questions  in  this  blank  form  must  be  answered,  or 
if  any  question  can  not  be  answered,  reason  for  not  answering  must 
be  given.  This  requirement  must  be  complied  with.  Otherwise,  the 
blank  will  be  returned  for  correction.  While  all  the  information 
asked  for  may  not  be  necessary  to  make  up  full  proof  in  every 
instance,  yet  it  is  necessary  for  other  requirements  of  this  depart- 
ment. 

Fill  out  blank,  using  ink  or  typewriter. 


521  OHIO   ACT.  §221 

to  work? How  long  did  he  remain  at  work  before 

death? At  what  weekly  wage? 16. 

What  impairment  of  earning  capacity  resulted  from  injury  and 
lasted  from  date  of  return  to  work  until  death  of  deceased? 

Answer:     He  was  able  to  earn per  cent,  and  no  more,  of 

his  former  wage. 

17.  Give  accurate  description  of  injury  which  caused  death 

18.  Where  was  deceased  taken  after  accident?     (If  to  a  hospital, 
give  name  and  address) 

19.  Who  furnished  medicines? Address 

20.  Names  of  attending  physicians  : 

Name Address . 

Name Address 

21.  Date  of  accident Hour  of  day M. 

22.  Place  of  accident:     P.  0 ,  Street  and  No 

County  of ,  Ohio, Building. 

23.  Give  full  details  as  to  how  accident  happened 

24.  Was  accident  caused  by  fault  of  fellow  workman 

25.  Did  accident  happen  on  the  premises,  or  at  the  plant,  or  In 
the  course  of  employment,  or  away  from  plant? 

26.  If  away  from  the  plant,  state  when,  how  and  by  whom  injured? 

27.  Names  and  addresses  of  witnesses: 

Name Address . 

Name Address 

Name Address 

28.  Was  accident  caused  by  fault  of  machines  or  devices? 

29.  Name  of  machine,  device,  etc.,  causing  accident? 

Condition  ? 

30.  Were  all  safeguards  in  their  places  at  time  of  accident? 

31.  If  any  safeguard  was  removed,  by  whom  was  it  removed? 

32.  Manager  of  said  plant Address 

33.  Foreman   or   superintendent   in  charge   of   department   where 
deceased  was  injured: 

Name Address 

Witness: 

(Signed) 

Employer. 


By 

(Name  and  official  position  of 
person  making  this  report.) 


§  222      WORKMEN'S  COMPENSATION  AND  INSURANCE.      522 

OATH. 

State  of  Ohio, County,  as: 

Before  me,  a  notary  public  in  and  for  said  county,  on  the 

day  of ,  191__,  personally  appeared 

who,  first  being  duly  sworn,  declared  that  the  facts  set  forth  in  the 
foregoing  certificate,  to  which  he  has  signed  his  name  in  my  pres- 
ence, are  true. 


Notary  Public. 
(Seal.)  My  commission  expires 

§222.     Form  of  physician's  fee  bill,     (g) 

The  following  is  an  itemized  account  of  professional  services 

rendered  in  connection  with  the  treatment  of  injury  to 

of  

(Name  of  patient.)  (Full  address  of  patient.) 

together  with  charges  therefor: 

Date.  Items.  Amount. 


(Items  should  be  written  out  fully.    Do  not  abbreviate.) 

(Signature  of  Affiant.) 
OATH. 

State  of  Ohio, County,  ss: 

,  being  first  duly  cautioned  and 

sworn,  says  that  he  treated  the  injury  to  the  above  named  person 
and  that  his  services  were  required  and  furnished  on  account  of  the 
purpose  above  mentioned,  and  the  same  were  necessary  therefor, 
and  that  the  charges  are  reasonable  and  not  more  than  he  charges 
for  like  services  in  other  instances. 

Sworn  to  before  me  and  subscribed  in  my  presence,  this 

day  of ,  191__ 


Notary  Public. 
(Seal.)  My  commission  expires 

§  223.     Form  of  druggist's  cost  bill,  (h) 

The  following  is  an  itemized  account  of  medicines  furnished 
and  services  rendered  in  connection  with  the  treatment  of  injury  to 


523                                                   OHIO   ACT.                                                §  224 
Of     

(Name  of  patient.)  (Full  address  of  patient.) 

together  with  charges  therefor: 

Date.  Items.  Amount. 


(Items  should  be  written  out  fully.    Do  not  abbreviate.) 

(Signature  of  Affiant.) 
OATH. 
State  of  Ohio, County,  ss: 

,  being  first  duly  cautioned  and 

sworn,  says  that  the  above  articles  or  services  were  required  and 
furnished  on  account  of  the  purpose  above  mentioned,  and  the  same 
were  necessary  therefor,  and  that  the  charges  are  reasonable  and  not 
more  than  he  charges  for  like  services  in  other  instances. 

Sworn  to  before  me  and  subscribed  in  my  presence,  this 

day  of ,  191__ 


Notary  Public. 
(Seal.)  My  commission  expires 

§  224.  Form  of  medical  fee  bill  and  hospital 
charges,  (i) 

The  following  is  an  itemized  account  of  medicines  furnished 
and  services  rendered  in  connection  with  the  treatment  of  injury  to 
,  of  

(Name  of  patient.)  (Full  address  of  patient.) 

together  with  charges  therefor: 

Date.  Items.  Amount. 


(Please  receipt,  if  paid.) 
(Items  should  be  written  out  fully.    Do  not  abbreviate.) 


(Signature  of  Affiant.) 
OATH. 

State  of  Ohio, County,  ss: 

,  being  first  duly  cautioned  and 

sworn,  says  that is of . 

(Name  of  hospital)     (Official  position) 


§  225      WORKMEN'S  COMPENSATION  AND  INSURANCE.      524 

of  ,  and  as  such  duly  authorized  in  the  premises; 

(Address.) 

that  the  above  articles  or  services  were  required  and  furnished  on 
account  of  the  purpose  above  mentioned,  and  the  same  were  neces- 
sary therefor,  and  that  the  charges  are  reasonable  and  not  more  than 
is  charged  by  affiant  for  like  services  in  other  instances. 

Sworn  to  before  me  and  subscribed  in  my  presence,  this 

day  of ,  191__ 


Notary  Public, 
(Seal.)  My  commission  expires 

§  225.    Form  of    certificate  and  oath  of  lay  wit- 
ness.    (j)23 

State  Liability  Board  of  Awards, 

Columbus,  Ohio. 
1.    Name  of  witness  making  this  report 


Address 


2.  What  is  your  present  occupation? 

i          Name  of  employer Address 

3.  Are  you  related  in  any  way  to  deceased If  so,  in 

what  way? What  interest,  if  any,  have  you  in 

this  claim? 

4.  Name  of  deceased Address  when  living? 

5.  Age Color Nationality 

Married,  single,  or  divorced? 

Wife  or  husband  living? 

6.  What  weekly  wage  was  he  receiving  at  time  of  injury? 

7.  How  long  had  he  been  receiving  such  wages? 

8.  Has  he  any  other  source  of  income? If  so,  how 

much  and  from  what  source  derived 9.  What 

work  was  he  engaged  in  at  time  of  accident 

10.  How  long  had  he  been  doing  this  work? 

11.  Was  this  his  regular  employment? If  not, 

what  was  his  regular  employment? 12.  Was  he 

skilled  in  the  work  being  done  at  time  of  accident? 

13.    Has  he  ever  received   any  other  injury  to  your  knowledge? 

If  so,  when,  where  and  what  was  its  nature? 

14.  Has  he  ever  had  any  serious  sickness  to  your 

knowledge? If  so,  what  was  it  and  how  long  did  it 


23A11  questions  in  this  blank  should  be  answered,  or  if  any 
question  can  not  be  answered,  reason  for  not  answering  should  be 
given. 

Fill  out  blank  in  ink,  using  pen  or  typewriter. 


525  OHIO    ACT.  §  225 

last 15.  Has  he  had  any  recent  sickness  to  your 

knowledge? If  so,  what  was  it  and  how  long  did 

it  last? 16.  Was  he  in  good  health  at  time  of  acci- 
dent?   17.  How  long  did  disability  caused  by  injury 

last  before  death  ensued? 18.  State  if  there  was 

partial  recovery  and  how  long  it  lasted 19.  Did 

deceased  return  to  work? How  long  did  deceased 

remain  at  work? At  what  weekly  wage? 

20.    When  at  work  he  was  able  to  earn per  cent,  of  the 

wages  received  before  injury,  and  no  more.  This  statement  is 
based  upon  actual  earning  capacity  of  deceased,  and  not  merely 
upon  the  wages  received.  21.  Did  deceased  receive  any  com- 
pensation from  the  State  Insurance  Fund How 

much? 22.  Was  deceased  a  member  of  any  lodge? 

If  so,  what  lodge  or  lodges? 

Did  deceased  carry  any  accident  insurance? If  so, 

how  much  and  in  what  companies? 

23.    The  following  persons  were  partly  or  wholly  dependent  upon 

deceased  at  the  time  of  h death:     . 

Relation        Age  Place  of  Birth 

Name   _ 


Address 

Partly  or  wholly In  what  amount  per  week?  $ — 

In  money  or  other  aid? What?. 

Name  _ 


Address 

Partly  or  wholly In  what  amount  per  week?  $ — 

.  In  money  or  other  aid? What?. 

24.    Describe  injury  which  caused  death  of  deceased 


25.    Where  was  deceased  taken  after  accident?. 


(If  to  a  hospital  give  name  and  address.) 

26.  Names  of  attending  physicians: 

Name Address 

Name Address 

27.  Who  furnished  medicines Address— 

28.  Undertaker ^ Address— 

29.  Date  of  accident Hour  of  day M. 

30.  Did  you  witness  the  accident? 

31.  Give  full  details  as  to  how  accident  occurred 


§  225      WORKMEN'S  COMPENSATION  AND  INSURANCE.      526 

32.  What,  in  your  estimation,  was  the  immediate  cause  of  the  in- 
jury?     

33.  Was  accident  caused  by  fault  of  any  fellow  workman  of  de- 
ceased?  If  so,  give  name  and  address 

34.  Did  accident  happen  on  the  premises,  or  at  the  plant,  or  in  the 
course  of  his  employment,  or  away  from  the  plant? 

35.  If  away  from  plant,  state  where  and  by  whom  he  was  injured? 

36.  Give  names  of  two  other  witnesses : 

Name •  Address 

Name Address 

37.  Was  accident  caused  by  fault  of  machines  or  devices? 

38.  Name  of  machine,  device,  etc.,  causing  accident 

Condition    

39.  Were  all  safeguards  in  their  places  at  time  of  accident? 

40.  If  any  safeguard  was  removed,  by  whom  was  it  removed? 

41.  Manager  of  said  plant: 

Name Address 

42.  Foreman   or   superintendent   in  charge   of   department  where 
deceased  was  injured: 

Name Address 

In  the  presence  of: 

Signed 


OATH. 

State  of  Ohio, County,  ss: 

Before  me, ,  a  notary  public  in  and  for  said  county, 

on  this day  of ,  191 ,  personally  appeared 

,  who,  first  being  duly  sworn,  declared  that  the  facts  set 

forth  in  the  foregoing  certificate,  which he  signed  in  my  pres- 
ence, are  true. 


Notary  Public. 
(Seal.)  My  commission  expires 


CHAPTER  XII. 


THE  WISCONSIN  WORKMEN'S  COMPENSATION  ACT. 


Sec.  Sec. 

226.  Nature  and  scope  of  Wis-      237. 

consin  act. 

227.  Text    of    Wisconsin    work-      238. 

men's     compensation    act 

with    construction    of    its      239. 

provisions. 

228.  The  opinion  of  the  Supreme 

Court   of   Wisconsin   sus-      240. 
taining      constitutionality 
of  act. 

229.  Decisions    of   commission — 

Construction  of  word  "em- 
ployment." 241. 

230.  Decisions   of   commission — 

Powers    of    commission — 
Review    of    awards — Con- 
struction   of    word    "em-      242. 
ployment." 

231.  Decisions   of   commission —      243. 

Construction      of     "wilful 
misconduct."  244. 

232.  Decisions    of   commission — 

Construction       of       word      245. 
"support." 

233.  Decisions   of   commission — 

Construction     of    "casual 
employment"  and  time  of      246. 
serving  "notice." 

234.  Decisions   of   commission — 

Meaning  of  "support"  "de- 
pendents." 247. 

235.  Procedure  under  the  act — 

Rules  of  practice. 

236.  Circular   letter   to   employ-      248. 

ers  by  the  commission  in 
explanation  of  its  rules  of      249. 
practice. 

527 


Formal  procedure  under 
Wisconsin  act. 

Form  of  employer's  written 
acceptance,  (a) 

Form  of  employer's  notice 
of  withdrawal  from  oper- 
ation of  act.  (b) 

Form  of  notice  that  em- 
ployer has  filed  notice  of 
election  to  become  sub- 
ject to  provisions  of  act. 
(c) 

Form  of  notice  by  employ- 
er to  the  commission  of 
compliance  with  the  law. 
(d) 

Form  of  first  report  ol  ac- 
cident, (e) 

Form  of  supplementary  re- 
ports on  accident,  (f) 

Form  of  answer  to  appli- 
cation, (g) 

Form  of  notice  by  employg 
that  he  elects  to  be  sub- 
ject to  provisions  of  act. 
(h) 

Form  of  notice  of  employfi 
upon  entering  employ- 
ment that  he  elects  not  to 
be  subject  to  act.  (1) 

Form  of  notice  to  employer 
of  claim  for  injury  under 
act.(j) 

Form  of  application  for  ad- 
justment of  claim,  (k) 

Form  of  accident  report  Of 
casualty  company.  (1) 


§  226      WORKMEN'S  COMPENSATION  AND  INSURANCE.      528 

Sec.  Sec. 

250.  Form  of  notice  of  hearing.      253.  Form  of  notice  of  the  entry 

(m)  of    findings     and     award 

251.  Form  of  subpoena,  (n)  made  by  commission,  (p) 

252.  Form  of  admission  of  serv- 

ice,    (o) 

§  226.  Nature  and  scope  of  Wisconsin  act. — This 
act  allows  an  election  by  the  employer.  Employes  be- 
come subject  to  the  provisions  of  the  act  thirty  days 
after  the  employer's  election  to  accept  its  provisions. 
By  affirmative  statement  filed  with  his  employer,  the 
employe  may  become  subject  to  the  act  immediately 
after  his  employer's  election.  The  employe  is  also  per- 
mitted, within  thirty  days  after  his  employer's  action,  to 
file  a  refusal.  The  employer's  liability  to  pay  the  com- 
pensation in  lieu  of  other  liability,  occurs  in  cases  where 
both  employer  and  employe  are  subject  to  the  provisions 
of  the  act  and  the  injury  is  received  while  the  employe 
is  performing  services  growing  out  of  and  incidental 
to  his  employment,  and  the  injury  is  proximately 
caused  by  the  accident  and  not  by  wilful  misconduct. 
Fees  and  costs  of  court  proceedings  on  the  award  may 
be  granted  at  the  discretion  of  a  reviewing  court.  The 
award  is  entitled  to  preference  over  the  unsecured  debts 
of  the  employer.  The  employer  who  does  not  elect  to  be 
bound  to  pay  the  compensation  provided  by  the  act  is 
denied  the  right  to  the  common-law  defenses  of  assump- 
tion of  risk  and  fellow  servant1  in  suits  brought  by  em- 
ployes for  injuries.  In  cases  where  the  employer  has 
filed  his  acceptance  of  the  act,  the  refusal  of  an  employe 
to  come  under  its  provisions  restores  to  the  employer 
the  defenses  of  assumption  of  risk  and  fellow  servant's 
negligence  as  to  that  particular  employe.1* 

The  employer  may  not  obtain  exemption  from 
these  provisions  by  contracts,  rules  or  regulations. 

i  When  four  or  more  workmen  are  employed,  post  p.  529. 

laThe  Industrial  Commission  of  Wisconsin  reports  it  as  a  fact 
that  up  to  September  1,  1912,  no  employe  has  availed  himself  of  this 
option. 


529  WISCONSIN    ACT.  §  227 

A  certified  copy  of  the  award  may  be  filed  by  either 
party  in  the  circuit  court,  whereupon  the  court  shall 
enter  judgment  for  the  amount  without  notice,  and 
this  judgment  shall  have  the  effect  of  ordinary 
judgments  entered  on  the  trial  of  causes.  The  award 
or  judgment  on  the  award  may  be  revived  on  the 
ground  that  the  commission  acted  without  or  in  excess 
of  its  powers,  or  that  the  award  was  procured  through 
fraud,  or  that  the  finding  of  facts  by  the  commission 
does  not  support  the  award.  An  appeal  lies  from  the 
judgment  of  review  in  the  same  manner  as  appeals  from 
the  orders  of  the  circuit  court. 

§  227.  Text  of  Wisconsin  workmen's  compensation 
act  with  construction  of  its  provisions. — This  act  be- 
came effective  September  1,  1911,  and  provides: 

Section  1.  Abrogation  of  Defenses. — There  are 
added  to  the  statutes  thirty-two  new  sections  to  read: 
Section  2394 — 1.  In  any  action  to  recover  damages  for 
a  personal  injury  sustained  within  this  state  by  an  em- 
ploye while  engaged  in  the  line  of  his  duty  as  such,  or 
for  death  resulting  from  personal  injury  so  sustained,  in 
which  recovery  is  sought  upon  the  ground  of  want  of 
ordinary  care  of  the  employer,  or  of  any  officer,  agent,  or 
servant  of  the  employer,  it  shall  not  be  a  defense: 

1.  That  the  employe  either  expressly  or  impliedly  as- 
sumed the  risk  of  the  hazard  complained  of. 

2.  When  such  employer  has  at  the  time  of  the  acci- 
dent in  a  common  employment  four  or  more  employes, 
that  the  injury  or  death  was  caused  in  whole  or  in  part 
by  the  want  of  ordinary  care  of  a  fellow  servant. 

Any  employer  who  has  elected  to  pay  compensation 
as  hereinafter  provided  shall  not  be  subject  to  the  pro- 
visions of  this  section  2394 — 1. 

Section  2394 — 2.  No  contract,  rule,  or  regulation, 
shall  exempt  the  employer  from  any  of  the  provisions  of 
the  preceding  section  of  this  act. 

34— BOYD  W  C 


§  227      WORKMEN'S  COMPENSATION  AND  INSURANCE.      530 

Note  by  the  Committee — The  object  of  these  two  sections  is  to 
destroy  two  of  the  common-law  defenses  now  in  existence  in  ac- 
tions brought  by  an  employe  against  his  employer  to  recover  dam- 
ages for  or  on  account  of  an  injury.  These  two  defenses  are  com- 
monly known  as  assumption  of  the  risk  and  negligence  of  a  fellow 
servant  The  tendency  throughout  the  United  States  in  the  last 
ten  years  has  been  to  destroy  these  defenses  for  the  reason  that  they 
are  considered  unjust  to  employe's.  The  following  states  have  ab- 
rogated or  modified  the  defense  of  fellow  servant's  negligence: 
Arkansas,  Colorado,  Florida,  Georgia,  Iowa,  Kansas,  Minnesota,  Mis- 
souri, Montana,  Nebraska,  Nevada,  North  Carolina,  North  Dakota, 
Ohio,  Oklahoma,  Oregon,  South  Dakota,  Texas,  Utah,  Virginia  and 
Wisconsin.  The  defense  of  assumption  of  the  risk  has  been  de- 
stroyed or  modified  in  many  of  the  above  states.  The  bill  now  rec- 
ommended absolutely  destroys  these  two  defenses  in  all  actions 
between  employer  and  employe  on  account  of  negligence.  The  de- 
stroying of  these  two  defenses  will  affect  principally  the  large  em- 
ployer in  industries  carried  on  with  a  large  amount  of  machinery 
and  many  employes.  There  will  be  little  or  no  effect  upon  the 
employer  who  has  but  one  employs  and  a  small  amount  of  ma- 
chinery. If  the  employer  or  employe"  is  acting  under  the  provisions 
of  that  part  of  the  bill  beginning  with  section  2394 — 4  known  as  the 
optional  portion  of  the  compensation  bill,  these  defenses  will  have 
no  force  or  effect,  because  no  defenses  apply  to  that  portion  of  the 
bill.  Consequently  this  part  of  the  bill  (sections  2394 — 1  and  2394 — 
2)  applies  to  all  persons  who  have  not  elected  to  accept  the  pro- 
visions beginning  with  section  2394 — 4. 

Under  this  provision  of  the  bill  (sections  2394 — 1  and  2394 — 2) 
in  case  of  injury  to  an  employ6,  in  order  to  recover,  it  would  be 
necessary  for  him  to  prove  that  his  employer  was  negligent,  that 
is,  that  there  was  want  of  ordinary  care  on  the  part  of  his  em- 
ployer which  directly  or  proximately  caused  the  injury  complained 
of.  If  the  employe  succeeded  in  so  proving,  then  the  employer,  in 
order  to  defeat  recovery,  would  be  allowed  to  show  that  the  em- 
ploye was  so  negligent,  that  is,  that  there  was  want  of  ordinary 
care  upon  the  part  of  the  employe"  which  directly  contributed  to 
the  injury.  And  if  this  were  established  it  would  defeat  the  action. 
Also,  if  it  were  shown  that  there  was  no  want  of  ordinary  care  on 
the  part  of  the  employer  which  directly  caused  the  injury,  the  em- 
ploye" would  be  defeated.  It  would  therefore  be  absolutely  neces- 
sary to  establish  two  facts  in  order  for  an  employe"  to  recover:  (1) 
That  there  was  want  of  ordinary  care  on  the  part  of  the  employer 
which  directly  caused  the  injury;  (2)  That  there  was  no  want  of 
ordinary  care  on  the  part  of  the  employe"  which  directly  contrib- 
uted to  his  injury. 

Under  this  proposed  law,  if  the  employe"  hereafter  proves  that 
his  injury  was  directly  caused  by  the  negligence  of  a  fellow  serv- 
ant, the  employer  will  be  liable.  Also  if  the  employe"  establishes 


53 l  WISCONSIN    ACT.  §  22/ 

that  his  injury  was  directly  caused  by  the  want  of  ordinary  care 
on  the  part  of  his  employer,  it  will  not  be  a  defense  to  show  that  the 
employe  assumed  the  risk  of  such  want  of  ordinary  care  upon  the 
part  of  the  employer.  The  committee  feels  that  it  would  be  harsh 
to  the  average  manufacturers  having  many  employes,  to  wipe  out 
these  two  defenses  without  offering  some  method  whereby  the  lia- 
bility incurred  by  the  employer  might  be  definitely  fixed. 

Note  by  the  commission — The  bill  as  first  drafted  did  not  con- 
tain the  provision  limiting  the  taking  away  of  the  defense  only  to 
employers  having  four  or  more  employes  in  a  common  employment. 
The  reason  for  the  limitation  may  probably  be  found  in  the  origin 
of  the  fellow  servant  doctrine,  i.  e.,  that  the  employ^,  being  closely 
associated  with  his  fellow  servants,  had  a  better  opportunity  to 
observe  the  habits  of  his  fellow  laborers  and  to  guard  against  their 
negligence  than  had  the  employer.  As  labor  conditions  became 
more  complex  and  great  numbers  of  men  were  engaged  in  a  com- 
mon employment,  the  reason  for  the  rule  ceased  to  exist. 

Under  the  act  as  passed  the  defense  of  assumption  of  risk  is 
taken  away  from  all  employers,  but  the  defense  of  the  negligence 
of  a  fellow  servant  is  taken  away  from  those  employers  only  who 
have  four  or  more  employe's  in  a  common  employment. 

Section  2394 — 3.  Application  to  Railroads. — Except 
as  regards  employes  working  in  shops  or  offices  of  a  rail- 
road company,  who  are  within  the  provisions  of  subsec- 
tion 9  of  section  1816  of  the  statutes  as  amended  by 
chapter  254  of  the  laws  of  1907,  the  term  "employer"  as 
used  in  the  two  preceding  sections  of  this  act  shall  not 
include  any  railroad  company  as  defined  in  subsection  7 
of  said  section  1816  as  amended,  said  section  1816  and 
amendatory  acts  being  continued  in  force  unaffected, 
except  as  aforesaid,  by  the  preceding  sections  of  this  act. 

Note  by  the  committee — This  section  exempts  from  the  two  pre- 
ceding sections  railroad  employes,  who  are  included  under  what  is 
known  as  the  comparative  negligence  act,  being  chapter  254  of  the 
laws  of  1907,  as  they  are  in  a  separate  class  by  themselves,  and 
have  a  separate  provision  of  the  statute  applicable  to  them. 

This  ends  that  part  of  the  bill  which  is  of  general  effect  and 
includes  everybody.  The  remaining  sections,  commencing  with  sec- 
tion 4,  are  applicable  only  to  those  who  elect  to  come  within  their 
provisions.  To  those  who  do  elect  to  come  within  their  provisions, 
the  remedies  therein  specified  are  exclusive  and  no  other  or  fur- 
ther remedies  are  allowed. 

Section  2394 — 4.     Liability  for  Compensation. — Lia- 


§  227      WORKMEN'S  COMPENSATION  AND  INSURANCE.      532 

bility  for  the  compensation  hereinafter  provided  for,  in 
lieu  of  any  other  liability  whatsoever,  shall  exist  against 
an  employer  for  any  personal  injury  accidentally  sus- 
tained by  his  employe,  and  for  his  death,  if  the  injury 
shall  proximately  cause  death,  in  those  cases  where  the 
following  conditions  of  compensation  concur: 

1.  Where,  at  the  time  of  the  accident,  both  the  em- 
ployer and  employe  are  subject  to  the  provisions  of  this 
act  according  to  the  succeeding  sections  hereof. 

2.  Where,  at  the  time  of  the  accident,  the  employe  is 
performing  service  growing  out  of  and  incidental  to  his 
employment. 

3.  Where  the  injury  is  proximately  caused  by  acci- 
dent, and  is  not  caused  by  wilful  misconduct. 

And  where  such  conditions  of  compensation  exist  for 
any  personal  injury  or  death,  the  right  to  recovery  of 
such  compensation  pursuant  to  the  provisions  of  this 
act,  and  acts  amendatory  thereof,  shall  be  the  exclusive 
remedy  against  the  employer  for  such  injury  or  death; 
in  all  other  cases  the  liability  of  the  employer  shall  be 
the  same  as  if  this  and  the  succeeding  sections  of  this 
act  had  not  been  passed,  but  shall  be  subject  to  the  pro- 
visions of  the  preceding  sections  of  this  act. 

Note  by  the  Committee— Whenever  this  section  applies — as  it 
does  apply  to  all  who  have  elected  to  accept  its  provisions — com- 
pensation is  paid  whenever  three  facts  appear,  namely:  (1)  The 
employ^  was  injured;  (2)  Such  injury  grew  out  of  and  was  inci- 
dental to  his  employment;  (3)  Such  injury  was  not  caused  by  wil- 
ful misconduct.  It  makes  no  difference  whose  fault  it  was  or  who 
was  to  blame;  It  is  sufficient  that  the  industry  caused  the  injury. 
"Wilful  misconduct"  as  referred  to  in  this  section  is  conduct  where- 
in the  will  of  the  person  was  exercised;  in  other  words,  intentional;  , 
and  it  may  be  such  wilful  misconduct  on  the  part  of  a  third  person. ' 

Section  2394 — 5.  "Employer"  Defined.— The  fol- 
lowing shall  constitute  employers  subject  to  the  provi- 
sions of  this  act  within  the  meaning  of  the  preceding 
section: 


533  WISCONSIN  ACT.  §  227 

1.  The  state,  and  each  county,  city,  town,  village, 
and  school  district  therein. 

2.  Every  person,  firm,  and  private  corporation  (in- 
cluding any  public  service  corporation),  who  has  any 
person  in  service  under  any  contract  of  hire,  express 
or  implied,  oral  or  written,  and  who,  at  or  prior  to  the 
time  of  the  accident  to  the  employe  for  which  compen- 
sation under  this  act  may  be  claimed,  shall,  in  the  man- 
ner provided  in  the  next  section,  have  elected  to  become 
subject  to  the  provisions  of  this  act,  and  who  shall  not, 
prior  to  such  accident,  have  effected  a  withdrawal  of 
such  election,  in  the  manner  provided  in  the  next  sec- 
tion. 

Sote  by  the  committee— This  section  defines  the  two  classes  of 
employers  to  which  Section  2394 — 4  and  the  subsequent  sections 
apply:  (1)  The  state  and  each  county,  city,  town,  village  and 
school  district.  As  to  these  the  bill  is  compulsory  and  the  state 
and  each  subdivision  must,  in  case  of  injury  to  its  employes,  pay 
the  compensation  as  fixed;  (2)  All  persons  who  shall  have  elected 
as  provided  in  section  2394 — 6  or  the  following  sections,  to  come 
under  the  provisions  of  this  bill. 

As  to  the  right  of  the  legislature  to  make  an  act  compulsory  as 
to  the  state  and  its  subdivisions,  there  is  little  doubt;  that  it  should 
be  done  is  recognized  by  all.  The  moral  aspect  of  this  phase  of  the 
subject  is  well  brought  out  in  the  presidential  message  of  Theodore 
Roosevelt  in  1908  when  he  wrote : 

"The  recent  decision  of  the  Supreme  Court  in  regard  to  the 
employers'  liability  act,  the  experience  of  the  Interstate  Commerce 
Commission  and  of  the  Department  of  Justice  in  enforcing  the  in- 
terstate commerce  and  anti-trust  laws,  and  the  gravely  significant 
attitude  toward  the  law  and  its  administration  recently  adopted  by 
certain  heads  of  great  corporations,  render  it  desirable  that  there 
should  be  additional  legislation  as  regards  certain  of  the  relations 
between  labor  and  capital,  and  between  the  great  corporations  and 
the  public. 

"The  Supreme  Court  has  decided  the  employers'  liability  law  to 
be  unconstitutional  because  its  terms  apply  to  employes  engaged 
wholly  in  intrastate  commerce  as  well  as  to  employe's  engaged  in 
interstate  commerce.  By  a  substantial  majority  the  court  holds 
that  the  Congress  has  power  to  deal  with  the  question  in  so  far  as 
interstate  commerce  is  concerned. 

"As  regards  the  employers'  liability  law,  I  advocate  its  imme- 
diate re-enactment,  limiting  its  scope  so  that  it  shall  apply  only 


§  227      WORKMEN'S  COMPENSATION  AND  INSURANCE.      534 

to  the  class  of  cases  as  to  which  the  court  say  it  can  constitution- 
ally apply,  but  strengthening  its  provisions  within  this  scope.  In- 
terstate employment  being  thus  covered  by  any  adequate  national 
law,  the  field  of  intrastate  employment  will  be  left  to  the  action  of 
the  several  states.  With  this  clear  definition  of  responsibility  the 
states  will  undoubtedly  give  to  the  performance  of  their  duty  within 
their  field  the  consideration  the  importance  of  the  subject  demands. 

"I  also  very  urgently  advise  that  a  comprehensive  act  be  passed 
providing  for  compensation  by  the  government  to  all  employes  in- 
jured in  the  government  service.  Under  the  present  law  an  in- 
jured workman  in  the  employment  of  the  government  has  no  rem- 
edy, and  the  entire  burden  of  the  accident  falls  on  the  helpless  man, 
his  wife  and  his  young  children.  This  is  an  outrage.  It  is  a  mat- 
ter of  humiliation  to  the  nation  that  there  should  not  be  on  our 
statute  books  provision  to  meet  and  partially  to  atone  for  cruel  mis- 
fortune when  it  comes  upon  a  man  through  no  fault  of  his  own 
while  faithfully  serving  the  public.  In  no  other  prominent  indus- 
trial country  in  the  world  could  such  gross  injustice  occur;  for 
almost  all  civilized  nations  have  enacted  legislation  embodying  the 
complete  recognition  of  the  principle  which  places  the  entire  trade 
risk  for  industrial  accidents  (excluding,  of  course,  accidents  due  to 
wilful  misconduct  by  the  employe)  on  the  industry  as  represented 
by  the  employer,  which  in  this  case  is  the  government. 

"In  all  these  countries  the  principle  applies  to  the  government 
just  as  much  as  to  the  private  employer.  Under  no  circumstances 
should  the  injured  employe"  or  his  surviving  dependents  be  re- 
quired to  bring  suit  against  the  government,  nor  should  there  be 
the  requirement  that  in  order  to  insure  recovery  negligence  in 
some  form  on  the  part  of  the  government  should  be  shown.  Our 
proposition  is  not  to  confer  a  right  of  action  upon  the  government 
employe,  but  to  secure  him  suitable  provision  against  injuries  re- 
ceived in  the  course  of  his  employment.  The  burden  of  the  trade 
risk  shou'  1  be  placed  upon  the  government.  Exactly  as  the  work- 
ing man  is  entitled  to  his  wages,  so  he  should  be  entitled  to  in- 
demnity for  the  injuries  sustained  in  the  natural  course  of  his  la- 
bor. The  rates  of  compensation  and  the  regulations  for  its  pay- 
ment should  be  specified  in  the  law,  and  the  machinery  for  deter- 
mining the  amount  to  be  paid  should  in  each  case  be  provided  in  such 
manner  that  the  employe  is  properly  represented  without  expense 
to  him.  In  other  words,  the  compensation  should  be  paid  auto- 
matically, while  the  application  of  the  law  in  the  first  instance 
should  be  vested  in  the  Department  of  Commerce  and  Labor.  The 
law  should  apply  to  all  laborers,  mechanics,  and  other  civilian  em- 
ploye's of  the  government  of  the  United  States,  including  those  in 
the  service  of  the  Panama  Canal  Commission  and  of  the  insular 
governments. 

"The  same  broad  principle  which  should  apply  to  the  govern- 
ment should  ultimately  be  made  applicable  to  all  private  employers. 


535  WISCONSIN  ACT.  §  227 

Where  the  nation  has  the  power  it  should  enact  laws  to  this  effect. 
Where  the  states  alone  have  the  power  they  should  enact  the  laws. 
It  is  to  be  observed  that  an  employers'  liability  law  does  not  really 
mean  mulcting  employers  in  damages.  It  merely  throws  upon  the 
employer  the  burden  of  accident  insurance  agaisnt  injuries  which 
are  sure  to  occur.  It  requires  him  either  to  bear  or  to  distribute 
through  insurance  the  loss  which  can  readily  be  borne  when  dis- 
tributed, but  which,  if  undistributed  bears  with  frightful  hardship 
upon  the  unfortunate  victim  of  accident 

"In  theory,  if  wages  were  always  freely  and  fairly  adjusted, 
they  would  always  include  an  allowance  as  against  the  risk  of  in- 
jury, just  as  certainly  as  the  rate  of  interest  for  money  includes  an 
allowance  for  insurance  against  the  risk  of  loss.  In  theory,  if 
employes  were  all  experienced  business  men,  they  would  employ 
that  part  of  their  wages  which  is  received  because  of  the  risk  of  in- 
jury to  secure  accident  insurance.  But  as  a  matter  of  fact,  it  is  not 
practical  to  expect  that  this  will  be  done  by  the  great  body  of  em- 
ployes. An  employers'  liability  law  makes  it  certain  that  it  will 
be  done,  in  effect,  by  the  employer,  and  it  will  ultimately  impose  no 
real  additional  burden  upon  him." 

Note  by  the  commission — Officers  of  the  state,  counties,  cities, 
towns,  villages  and  school  districts  should  take  notice  that  this  act 
applies  to  the  state  and  all  counties,  cities,  towns,  villages  and 
school  districts,  from  and  after  its  publication,  to-wit,  May  3,  1911. 
All  accidents  of  employes  of  these  governmental  agencies  received 
in  the  course  of  their  employment  should  be  reported  to  the  com- 
mission by  the  proper  officers,  and  arrangement  should  be  made 
for  compensation  as  provided  in  the  act. 

Section  2394 — 6.  Election  by  employer. — Such  elec- 
tion on  the  part  of  the  employer  shall  be  made  by  filing 
with  the  industrial  accident  board,2  hereinafter  provided 
for,  a  written  statement  to  the  effect  that  he  accepts  the 
provisions  of  this  act,  the  filing  of  which  statement  shall 
operate,  within  the  meaning  of  section  2394 — 5  of  this 
act  to  subject  such  employer  to  the  provisions  of  this  act 
and  all  acts  amendatory  thereof  for  the  term  of  one  year 
from  the  date  of  the  filing  of  such  statement,  and  there- 
after, without  further  act  on  his  part,  for  successive 
terms  of  one  year  each,  unless  such  employer  shall,  at 
least  sixty  days  prior  to  the  expiration  of  such  first  or 
any  succeeding  year,  file  in  the  office  of  said  board  a 
notice  in  writing  to  the  effect  that  he  desires  to  with- 

2  Superseded  by  Industrial  Commission  of  Wisconsin. 


§  227      WORKMEN'S  COMPENSATION  AND  INSURANCE.      536 

draw  his  election  to  be  subject  to  the  provisions  of  the 
act. 

Note  by  the  committee — The  filing  of  the  statement  referred  to 
in  this  section  is  the  employers'  voluntary  election  to  pay  the  com- 
pensation scheduled.  Under  the  same  section,  however,  he  is  at 
liberty  to  withdraw  his  election  at  the  end  of  the  year  or  to  con- 
tinue it  from  year  to  year  at  pleasure.  Owing  to  constitutional 
limitations  it  was  necessary  to  frame  an  optional  bill  and  such  a 
bill  can  be  successful  only  with  the  hearty  co-operation  of  employ- 
ers and  employe's.  Therefore  the  committee  deemed  it  wise  to  per- 
mit employers  to  withdraw  their  election  when  the  act  failed  to 
work  to  their  complete  satisfaction.  Compensation,  measures  are 
purely  experimental  in  this  country  and  in  order  to  persuade  em- 
ployers to  try  the  experiment  the  committee  feels  that  they  should 
be  given  the  right  to  return  to  old  conditions  after  having  tried  the 
new  and  found  them  unsatisfactory.  It  will  take  but  a  short  time, 
this  committee  believes,  for  employers  to  determine  the  extent  of 
the  burden  of  operating  under  the  act  and  to  find  whether  the  new 
method  is  more  advantageous  than  the  old. 

Section  2304 — 7.  "Employe"  defined — The  term 
"employe"  as  used  in  section  2394 — 4  of  this  act  shall  be 
construed  to  mean: 

1.  Every  person  in  the  service  of  the  state,  or  of  any 
county,  city,  town,  village,  or  school  district  therein, 
under  any  appointment,  or  contract  of  hire,  express  or 
implied,  oral  or  written,  except  any  official  of  the  state, 
or  of  any  county,  city,  town,  village,  or  school  district 
therein,  provided  that  one,  employed  by  a  contractor, 
who  has  contracted  with  a  county,  city,  town,  village, 
school  district,  or  the  state,  through  its  representatives, 
shall  not  be  considered  an  employe  of  the  state,  county, 
city,  town,  village,  or  school  district  which  made  the 
contract. 

2.  Every  person  in  the  service  of  another  under  any 
contract  of  hire,  express  or  implied,  oral  or  written,  in- 
cluding aliens,  and  also  including  minors  who  are  legally 
permitted  to  work  under  the  laws  of  the  state  (who,  for 
the  purposes  of  the  next  section  of  this  act,  shall  be  con- 
sidered the  same  and  shall  have  the  same  power  of  con- 
tracting as  adult  employes),  but  not  including  any  per- 


'537  WISCONSIN  ACT.  §  227 

son  whose  employment  is  but  casual  or  is  not  in  the 
usual  course  of  the  trade,  business,  profession,  or  occu- 
pation of  his  employer. 

Section  2394 — 8.  Election  by  Employe. — Any  em- 
ploye as  defined  in  subsection  1  of  the  preceding  section 
shall  be  subject  to  the  provisions  of  this  act  and  of  any 
act  amendatory  thereof.  Any  employe  as  defined  in 
subsection  2  of  the  preceding  section  shall  be  deemed  to 
have  accepted  and  shall,  within  the  meaning  of  section 
2394 — 4  of  this  act,  be  subject  to  the  provisions  of  this 
act  and  of  any  act  amendatory  thereof,  if,  at  the  time  of 
the  accident  upon  which  liability  is  claimed: 

1.  The  employer  charged  with  such  liability  is  sub- 
ject to  the  provisions  of  this  act,  whether  the  employe 
has  actual  notice  thereof  or  not;  and 

2.  Such  employe  shall  not,  at  the  time  of  entering 
into  his  contract  of  hire,  express  or  implied,  with  such 
employer,  have  given  to  his  employer  notice  in  writing 
that  he  elects  not  to  be  subject  to  the  provisions  of  this 
act ;  or,  in  the  event  that  such  contract  of  hire  was  made 
in  advance  of  such  employer  becoming  subject  to  the 
provisions  of  this  act,  such  employe  shall  have  given  to 
his  employer  notice  in  writing  that  he  elects  to  be  sub- 
ject to  such  provisions,  or  without  giving  either  of  such 
notices,  shall  have  remained  in  the  service  of  such  em- 
ployer for  thirty  days  after  the  employer  has  filed  with 
said  board  an  election  to  be  subject  to  the  terms  of  this 
act. 

Ifote  by  the  committee — These  two  sections  define  the  two  classes 
cf  employes  to  whom  section  2394 — 4  and  the  subsequent  sections 
apply.  As  to  persons  in  the  service  of  the  state,  counties,  towns, 
villages  or  school  districts,  except  the  officials,  the  act  is  compul- 
sory. There  can  be  no  serious  doubt  that  the  legislature  has  a  right 
to  deprive  any  employ^  of  this  state  of  any  right  of  action  for  and 
on  account  of  damages  for  an  injury,  because  no  such  cause  of  ac- 
tion exists  generally,  except  based  upon  the  statute.  Then,  all  em- 
ploye's are  within  the  provisions  of  sections  2394 — 4  and  subse- 
quent sections  of  this  act,  unless  at  the  time  of  entering  into  such 
employment  the  employs  gives  the  employer  written  notice  that 


§  227      WORKMEN'S  COMPENSATION  AND  INSURANCE.      538 

he  elects  not  to  be  subject  to  the  provisions  of  the  act.  In  those 
crises  In  which  the  contract  of  hiring  was  made  before  the  time  that 
the  employer  elected  to  ccfme  under  the  act,  the  employs  is  to  have 
the  right  to  elect  to  be  subject  to  such  provisions.  If  he  gives  no 
notice  of  such  election  but  remains  in  the  service  of  the  employer 
for  thirty  days  after  the  latter  files  notice  of  his  election,  then  the 
employ^  shall  be  subject  to  the  act.  The  New  York  law  provides 
that  this  contract  between  the  employer  and  the  employe1  shall  be 
in  writing,  acknowledged,  and  filed  with  the  county  clerk  in  every 
case.  The  committee  feels  that  it  would  be  a  great  hindrance  to 
the  ordinary  conduct  of  business,  if,  whenever  an  employs  desired 
to  hire  out  to  an  employer,  it  became  necessary  to  draw  up  a  for- 
mal contract  before  he  could  receive  compensation  under  the  act. 
As  provided  here,  when  a  man  hires  out  to  an  employer  who  has 
elected  to  come  under  the  provisions  of  the  act,  by  the  mere  fact 
of  hiring  out  he  waives  his  right  to  any  common-law  damages  in 
case  of  injury,  and  accepts  the  compensation.  This  will  not  change 
the  present  way  of  doing  business,  and  if  the  provisions  for  com- 
pensation are  fair,  as  the  committee  thinks  they  are,  an  appeal  to 
workmen  as  being  fair  and  furnishing  much  better  average  com- 
pensation in  fact  than  under  the  present  system,  the  reasonable 
employ^  will  be  glad  to  accept  the  provisions  of  the  bill  and  thus 
be  assured  of  the  compensation  provided.  This  law  must  work 
automatically  as  nearly  as  possible. 

These  sections  also  provide  that  the  employe  must  elect  at 
the  time  of  hiring  instead  of  after  the  injury.  The  election  here 
mentioned  means  the  choice,  or  right,  to  sue  at  common  law  for 
an  injury,  or  to  accept  in  advance  the  scale  of  compensation  set 
forth  in  the  act.  The  employ^,  when  his  employer  elects  to 
come  under  the  act,  must  take  one  or  the  other.  He  can  not  take 
both.  If  he  chooses  to  accept  the  compensation  at  the  time  he 
hires  out,  then  he  waives  his  right  to  sue  if  he  is  injured  and 
can  have  the  compensation  only.  If  he  chooses  to  retain  his 
right  to  sue  at  common  law,  then  he  can  not  claim  the  compen- 
sation. It  is  important  to  state  here  that  the  waiver  by  an  em- 
ployS  of  his  common-law  right  binds  his  widow  or  dependents 
in  case  of  fatal  accident.  The  English  law,  contrary  to  the  Wis- 
consin act,  allows  the  election  after  the  injury.  The  German 
law  is  compulosry  both  as  to  employers  and  employes  so  that 
there  is  no  election. 

Probably  no  other  single  phase  of  this  subject  of  compensa- 
tion has  given  rise  to  more  earnest  thought  and  careful  deliber- 
ation on  the  part  of  the  committee  than  this  question  of  election 
before  or  after  the  accident.  The  conclusion  unanimously 
reached  that  such  election  should  be  made  at  the  time  of  hiring 
can  be  sustained  upon  the  ground  that  it  prevents  great  waste. 
If  the  election  is  made  after  the  injury,  the  employe  has  two 


539  WISCONSIN  ACT.  §  227 

options:  (a)  He  can  accept  the  compensation  under  this  act; 
(b)  he  can  sue  the  employer  in  court  and  recover  unlimited 
damages  if  he  is  able  to  show  that  his  injury  was  caused  by  the 
fault  of  his  employer  and  through  no  fault  of  his  own.  This 
means  that  in  those  cases  where  the  injury  was  caused  solely 
by  the  fault  of  the  employe"  and  also  in  those  cases  where  the 
injury  was  purely  an  accident  (a  hazard  of  the  industry,  -and  no 
fault  of  any  one)  and  also  in  those  cases  where  injury  was 
caused  partly  by  the  fault  of  the  employe  and  partly  by  the 
fault  of  the  employer,  the  employer  would  be  compelled  to  pay 
compensation.  Why?  The  employe"  in  all  such  cases  would 
elect  to  accept  compensation,  knowing  that  he  could  not  recover 
in  court.  In  the  one  case  where  the  injury  was  caused  solely  by 
the  fault  of  the  employer  and  without  fault  of  the  employe,  he 
would  not  accept  the  scheduled  compensation  but  would  sue  at 
common  law  in  almost  complete  confidence  of  victory.  He  would 
have  every  reason  to  expect  a  jury  to  grant  much  larger  damages 
than  would  be  possible  had  he  accepted  compensation. 

Under  this  condition  of  affairs  in  which  the  injured  employe 
might  elect  after  injury  to  sue  or  accept  compensation,  what  would 
be  the  result?  Whenever  an  injury  occurred,  the  employer  in  order 
to  protect  himself  from  a  large  verdict  from  a  jury,  would  be 
forced  to  employ  lawyers  to  investigate  the  cause  of  the  accident, 
secure  affidavits  from  all  persons  knowing  anything  about  the  cir- 
cumstances and  then  have  these  lawyers  prepare  to  resist  the  claim 
of  the  employe.  Thus  there  would  be  incurred  a  heavy  expense, 
which  instead  of  adding  to  the  amount  paid  the  employe",  would  cut 
it  down  or  else  cut  off  completely  his  chance  for  financial  assist- 
ance. The  legal  fight  of  the  employer  would  add  very  greatly  to 
his  burden  and  to  the  burden  borne  by  the  industry.  With  election 
after  the  accident,  therefore  a  great  share  of  the  waste  of  the 
present  system  would  be  continued  instead  of  diminished. 

Election  before  the  accident  may  be  sustained  upon  a  still  firmer 
ground.  Election  after  the  accident  would  benefit  a  few  employes 
at  the  expense,  in  a  great  measure,  of  the  many.  It  would  be  only 
those  employe's  whose  injury  was  caused  by  the  sole  fault  of  the 
employer  without  any  fault  on  the  part  of  the  employs,  who  could 
be  benefited  by  the  deferred  election:  it  is  estimated  that  these 
cases  would  be  only  about  10  per  cent,  of  the  whole.  The  fighting 
of  these  claims  of  the  10  per  cent,  and  the  occasional  payment  of 
large  verdicts,  would  mean  that  the  90  per  cent,  would  have  to 
accept  less  compensation  than  that  now  scheduled.  In  other  words, 
the  many  would  lose  in  order  that  the  few  might  gain.  It  must  be 
remembered  that  there  is  necessarily  a  limit  to  the  burden  that  the 
employer  or  the  industry  can  bear.  If  a  large  part  of  that  burden 
is  wasted,  the  remainder  to  be  used  for  compensation  must  be  less. 
By  providing  for  pre-election  (election  at  the  time  of  the  hiring), 


§  227     WORKMEN'S  COMPENSATION  AND  INSURANCE.      540 

instead  of  deferred  election,  (election  at  the  time  of  the  injury),  the 
committee  felt  justified  in  increasing  the  compensation,  in  case 
of  death  or  total  incapacity,  from  three  to  four  years'  earnings 
and  in  raising  the  minimum  from  $1,000  to  $1,500.  If  the  elec- 
tion should  be  changed  from  the  time  of  hiring  to  the  time  of 
injury,  then,  in  the  opinion  of  the  committee,  the  compensation 
schedule,  in  justice  to  employers,  should  be  lowered.  We  quote 
Prof.  C.  R.  Henderson,  one  of  the  best  known  authorities  on  work- 
ingmen's  compensation :  "What  we  must  now  seek  is  protection  for 
all  injured  workmen — not  revenge  for  the  few." 

Another  most  vital  truth  regarding  election  after  the  injury  is 
that  it  introduces  an  element  of  uncertainty  as  to  the  amount  to  be 
received  by  the  injured  employe.  This  condition  causes  unrest  and 
dissatisfaction.  To  illustrate:  "A,"  "B"  and  "C"  are  seriously  in- 
jured under  what  to  the  average  person  appears  to  be  similar 
circumstances,  and  to  the  same  extent.  "A"  elects  to  sue  and  to 
decline  to  accept  compensation.  The  case  is  tried  and  is  carried  to 
the  Supreme  court  where  it  is  finally  decided  that  "A"  can  not  recov- 
er; that  while  his  injury  was  caused  by  the  fault  of  his  employer, 
still  "A"  himself  was  partly  at  fault.  So  "A"  and  his  family  secure 
no  relief  after  years  of  waiting  and  suffering.  "B,"  apparently  in- 
jured in  the  same  manner  and  to  the  same  extent  as  "A,"  also  elects 
to  sue  at  common  law  and  to  refuse  compensation.  He  recovers 
$12,000  and  this  judgment  is  sustained  in  the  Supreme  court  on  the 
ground  that  his  injury  was  caused  by  the  fault  of  the  employer 
without  any  fault  on  the  employ6's  part.  "B"  therefore  gets  $12,000,. 
less  of  course,  the  fee  of  his  attorney  and  expenses  of  the  suit. 
"C"  whose  case  is  similar  to  that  of  "A"  and  "B,"  elects  immedi- 
ately after  the  accident  to  accept  his  compensation  and  gets  the 
maximum,  $3,000,  without  delay:  Result:  "A"  and  his  friends  are 
dissatisfied  and  feel  bitter  toward  employers  in  general  and  the 
courts  in  particular.  To  some  extent  "C"  feels  the  same  way 
because  of  the  large  sum  recovered  by  "B." 

This  committee  feels  that  compensation  should  be  certain  as  to 
all  and  certain  as  to  the  amount  so  that  all  employe's  and  others  will 
understand  why  the  dependents  of  one  man  get  $1,500  in  case  of 
death  while  the  dependents  of  another  get  $2,000  or  $3,000,  just  as 
clearly  as  they  now  understand  why  one  workman  gets  $2  a  day 
and  another  more  skillful  workman  gets  $4  a  day.  The  committee 
appreciates  the  force  of  the  argument  "that  a  totally  incapacitated 
man  might  suffer  an  injustice;  that  the  maximum  allowed  under 
the  act  would  not  be  just  compensation."  On  the  other  hand,  it 
knows  that  under  the  present  system  the  totally  incapacitated 
employe",  in  the  majority  of  cases,  gets  absolutely  nothing.  Under 
this  act,  while  he  may  not  get  full  compensation,  he  will  always 
get  some  compensation,  and  that,  practically,  without  expense  to 
him,  and  at  the  time  when  he  most  needs  it. 


54 1  WISCONSIN   ACT.  §  22/ 

Section  2394 — 9.  Scale  of  Compensation. — Where 
liability  for  compensation  under  this  act  exists,  the  same 
shall  be  as  provided  in  the  following  schedule: 

1.  Such  medical  and  surgical  treatment,  medicines, 
medical  and  surgical  supplies,  crutches,  and  apparatus, 
as  may  be  reasonably  required  at  the  time  of  the  injury 
and  thereafter  during  the  disability,  but  not  exceeding 
ninety  days,  to  cure  and  relieve  from  the  effects  of  the 
injury,  the  same  to  be  provided  by  the  employer;  and  in 
case  of  his  neglect  or  refusal  seasonably  to  do  so,  the  em- 
ployer to  be  liable  for  the  reasonable  expense  incurred 
by  or  on  behalf  of  the  employe  in  providing  the  same. 

2.  If   the   accident   causes    disability,    an   indemnity 
which  shall  be  payable  as  wages  on  the  eighth  day  after 
the  injured  employe  leaves  work  as  the  result  of  the  in- 
jury, and  weekly  thereafter,  which  weekly  indemnity 
shall  be  as  follows : 

(a)  If  the  accident  causes  total  disability,  sixty-five 
per  cent,  of  the  average  weekly  earnings  during  the 
period  of  such  total  disability;  provided  that,  if  the  dis- 
ability is  such  as  not  only  to  render  the  injured  employe 
entirely  incapable  of  work,  but  also  so  helpless  as  to  re- 
quire the  assistance  of  a  nurse,  the  weekly  indemnity 
during  the  period  of  such  assistance  after  the  first  ninety 
days  shall  be  increased  to  one  hundred  per  cent,  of  the 
average  weekly  earnings. 

(b)  If  the  accident  causes  partial  disability,  sixty- 
five  per  cent,  of  the  weekly  loss  in  wages  during  the 
period  of  such  partial  disability. 

(c)  If  the  disability  caused  by  the  accident  is  at 
times  total  and  at  times  partial,  the  weekly  indemnity 
during  the  periods,  of  each  such  total  or  partial  disability 
shall  be  in  accordance  with  said  subdivisions  (a)   and 
(b)  respectively. 

(d)  Said  subdivisions  (a),  (b),  and  (c)  shall  be  sub- 
ject to  the  following  limitations: 

Aggregate  disability  indemnity  for  injury  to  a  single 


§  227     WORKMEN'S  COMPENSATION  AND  INSURANCE.      542 

employe  caused  by  a  single  accident  shall  not  exceed 
four  times  the  average  annual  earnings  of  such  employe. 

The  aggregate  disability  period  shall  not,  in  any 
event,  extend  beyond  fifteen  years  from  the  date  of  the 
accident. 

The  weekly  indemnity  due  on  the  eighth  day  after 
the  employe  leaves  work  as  the  result  of  the  injury  may  • 
be  withheld  until  the  twenty-ninth  day  after  he  so  leaves 
work;  if  recovery  from  the  disability  shall  then  have  oc- 
curred, such  first  weekly  indemnity  shall  not  be  recover- 
able; if  the  disability  still  continues,  it  shall  be  added  to 
the  weekly  indemnity  due  on  said  twenty-ninth  day  and 
be  paid  therewith. 

If  the  period  of  disability  does  not  last  more  than  one 
week  from  the  day  the  employe  leaves  work  as  the  result 
of  the  injury  no  indemnity  whatever  shall  be  recover- 
able. 

3.  The  death  of  the  injured  employe  shall  not  affect 
the  obligation  of  the  employer  under  subsections  1  and 
2  of  this  section,  so  far  as  his  liability  shall  have  become 
payable  at  the  time  of  death;  but  the  death  shall  be 
deemed  the  termination  of  disability,  and  the  employer 
shall  thereupon  be  liable  for  the  following  death  benefits 
in  lieu  of  any  further  disability  indemnity: 

(a)  In  case  the  deceased  employe  leaves  a  person  or 
persons  wholly  dependent  on  him  for  support,  the  death 
benefit  shall  be  a  sum  sufficient,  when  added  to  the  in- 
demnity which  shall  at  the  time  of  death  have  been  paid 
or  become  payable  under  the  provisions  of  subsection  2 
of  this  section,  to  make  the  total  compensation  for  the 
injury  and  death  (exclusive  of  the  benefit  provided  for 
in  subsection  1),  equal  to  four  times  his  average  annual 
earnings;  the  same  to  be  payable,  unless  and  until  the 
board  shall  direct  payment  in  gross,  in  weekly  install- 
ments corresponding  in  amount  to  the  weekly  earnings 
of  the  employe. 

(b)  In   case   the   deceased   employe  leaves   no   one 


543  WISCONSIN  ACT.  §  227 

wholly  dependent  on  him  for  support,  but  one  or  more 
persons  partially  dependent  therefor,  the  death  benefit 
shall  be  such  percentage  of  four  times  such  average 
annual  earnings  of  the  employe  as  the  average  annual 
amount  devoted  by  the  deceased  to  the  support  of  the 
person  or  persons  so  partially  dependent  on  him  for  sup- 
port bears  to  such  average  annual  earnings,  the  same  to 
be  payable,  unless  and  until  the  board  shall  direct  pay- 
ment in  gross,  in  weekly  installments,  corresponding  in 
amount  to  the  weekly  earnings  of  the  employe;  provided 
that  the  total  compensation  for  the  injury  and  death  (ex- 
clusive of  the  benefit  provided  for  in  said  subsection  1) 
shall  not  exceed  four  times  such  average  annual  earn- 
ings. 

(c)  Liability  for  the  death  benefits  provided  for  in 
subdivisions   (a)   and   (b)   respectively  shall  only  exist 
where  the  accident  is   the  proximate   cause   of  death; 
provided  that,  if  the  accident  proximately  causes  per- 
manent total   disability,   and   death  ensues   from   some 
other  cause  before  disability  indemnity  ceases,  the  death 
benefit  shall  be  the  same  as  though  the  accident  had 
caused  death;  and  provided  further  that,  if  the  accident 
proximately   causes    permanent    partial    disability    and 
death  ensues  from  some  other  cause  before  disability 
indemnity  ceases,  liability  shall  exist  for  such  percentage 
of  the  death  benefits  provided  for  in  said  subdivision 
(a)  or  (b)   (as  the  case  may  be),  as  shall  fairly  repre- 
sent  the    proportionate    extent    of   the    impairment    of 
earning  capacity  caused  by  such  permanent  partial  disa- 
bility in   the   employment   in  which   the   employe  was 
working  at  the  time  of  the  accident. 

(d)  If  the  deceased  employe  leaves  no  persons  de- 
pendent upon  him  for  support,  and  the  accident  proxi- 
mately causes  death,  the  death  benefit  shall  consist  of 
the  reasonable  expense  of  his  burial,  not  exceeding  $100. 

Jfote  by  the  Committee:— This  section  provides  for  the  amount 
of  compensation  that,  shall  be  paid  to  an  injured  employe"  or  his 


§  227      WORKMEN'S  COMPENSATION  AND  INSURANCE.      544 

dependents.  This  scale  is  more  liberal  than  any  other  scale  that 
has  heretofore  been  enacted  or  proposed  in  any  state.  The  New 
York  law  provides  for  payment  of  50  per  cent,  of  the  average 
weekly  earnings,  and  in  case  of  death  the  payment  of  1,200  times 
the  average  weekly  earnings,  with  a  maximum  of  $3,000,  but  no 
minimum.  Under  the  Wisconsin  act  the  employer  must  provide 
medical  and  surgical  treatment,  medicine,  etc.,  for  ninety  days. 
This  provision  is  made  for  two  reasons:  First:  As  a  rule  an 
employer  is  more  competent  to  judge  the  efficiency  of  the  doctor 
employed  and  to  provide  efficient  medical  and  surgical  treatment. 
Second:  It  is  to  the  interest  of  the  employer  to  furnish  the  very 
best  medical  and  surgical  treatment,  so  as  to  minimize  the  result  of 
the  injury,  and  to  secure  as  early  a  recovery  as  possible.  The  more 
serious  the  result  of  the  injury,  the  more  the  employer  must  pay. 
Also  by  this  means  he  obtains  a  complete  knowledge  of  the  exact 
condition  of  the  injured  employe". 

This  section  also  provides  where  there  is  total  disability,  for  the 
payment  of  65  per  cent,  of  the  average  weekly  earnings  during  the 
period  of  such  total  disability.  But  no  wages  less  than  $375  per 
year  shall  be  considered,  nor  more  than  $750.  In  case  the  injury 
renders  the  employe  entirely  helpless,  the  indemnity  is  increased  to 
100  per  cent,  of  the  average  weekly  earnings.  Where  the  injury 
causes  only  partial  disability,  65  per  cent,  of  the  weekly  loss  in 
wages  is  paid.  The  only  limitations  are  that  the  aggregate  disability 
for  injury  to  a  single  employe  caused  by  a  single  accident  shall  not 
exceed  four  times  the  average  annual  earnings.  This  refers  to 
those  rare  cases  where  in  one  accident  the  employe  receives  two  dis- 
tinct injuries.  Also  there  is  a  limitation  that  the  weekly  indemnity 
due  on  the  eighth  day  after  the  injured  employe  leaves  work  shall 
be  held  until  the  twenty-ninth  day,  and  if  recovery  shall  have 
occurred  within  that  time,  the  first  week's  indemnity  shall  not  be 
paid.  The  object  of  this  is  to  prevent  malingering.  A  man  receiv- 
ing a  slight  injury  that  might  disable  him  for  three  or  four  days, 
might  pretend  to  be  disabled  for  a  week  in  order  to  receive  the  first 
week's  indemnity.  But  it  is  assumed  that  he  would  not  lay  up  for 
four  weeks  in  order  to  get  this  first  week's  indemnity.  This  re- 
serves to  those  who  are  seriously  injured,  the  right  to  receive  their 
compensation  from  date  of  the  injury.  As  medical  and  surgical 
treatment  are  furnished  in  all  cases  it  seems  only  fair  that  in 
minor  cases  not  causing  disability  for  a  week,  compensation  should 
not  be  recovered. 

Subsection  3  provides  for  death  benefits,  and  this  is  based  upon 
four  times  the  average  annual  earnings,  but  not  less  than  $1,500, 
nor  more  than  $3,000.  This  sum  is  to  be  paid  in  the  same  manner 
as  wages.  The  object  of  this  is  to  furnish  the  compensation  in  the 
same  method  that  the  family  has  been  in  the  habit  of  receiving 
support.  A  deviation  from  this  rule  can  be  made,  however,  when 


545  WISCONSIN  ACT.  §  227 

the  Industrial  Accident  board  is  convinced  that  it  is  to  the  best 
interest  of  the  parties  to  order  that  the  amount  be  paid  in  a  lump 
sum. 

In  case  there  are  no  dependents,  the  death  benefit  is  simply  the 
reasonable  expense  of  burial  not  exceeeding  $100. 

In  subdivision  "c"  of  subsection  3,  provision  is  made  for  those 
cases  where  death  may  ensue  after  injury  and  still  not  be  caused  by 
the  injury.  Any  comprehensive  compensation  scheme  should  pro- 
vide for  the  dependents  in  case  of  the  death  of  a  person  who  has 
been  totally  disabled  and  who  is  receiving  compensation  at  the  time 
of  death  but  whose  death  results  from  a  cause  not  connected  with 
the  original  injury.  The  compensation  is  fixed,  in  fact,  at  the  time 
of  the  injury,  and  the  further  fact  that  it  is  paid  in  installments  in- 
stead of  a  lump  sum  should  not  defeat  the  dependents  of  their  right 
to  support  if  death  of  the  injured  person  from  any  cause  follows. 
This  same  provision  in  modified  form  is  carried  into  those  cases 
where  there  is  only  permanent  partial  disability.  The  justice  of 
these  provisions  must  appeal  to  those  giving  the  matter  broad 
consideration. 

Section  2394 — 10.  Method  of  Computation— 1.  The 
weekly  earnings  referred  to  in  section  2394 — 9  shall  be 
one  fifty-second  of  the  average  annual  earnings  of  the 
employe;  average  annual  earnings  shall  not  be  taken  at 
less  than  $375,  nor  more  than  $750,  and  between  said 
limits  shall  be  arrived  at  as  follows: 

(a)  If  the  injured  employe  has  worked  in  the  employ- 
ment in  which  he  was  working  at  the  time  of  the  acci- 
dent, whether  for  the  same  employer  or  not,  during  sub- 
stantially the  whole  of  the  year  immediately  preceding 
his   injury,   his   average   annual   earnings   shall   consist, 
of  three  hundred  times  the  average  daily  wage  or  salary 
which  he  has  earned  in  such  employment  during  the  days 
when  so  employed. 

(b)  If  the  injured  employe  has  not  so  worked  in 
such  employment  during  substantially  the  whole  of  such 
immediately  preceding  year,  his  average  annual  earn- 
ings shall  consist  of  three  hundred  times  the  average 
daily  wage  or  salary  which  an  employe  of  the  same 
class  working  substantially  the  whole  of  such  imme- 
diately preceding  year  in  the  same  or  in  similar  employ- 
ment in  the  same  or  a  neighboring  place  shall  have 

35— BOYD  W  C 


§  227      WORKMEN'S  COMPENSATION  AND  INSURANCE.      546 

earned  in  such  employment  during  the  days  when  so 
employed. 

(c)  In  cases  where  the  foregoing  methods  of  arriv- 
ing at  the  average  annual  earnings  of  the  injured  em- 
ploye can  not  reasonably  and  fairly  be  applied,  such 
annual  earnings  shall  be  taken  at  such  sum  as,  having 
regard  to  the  previous  earnings  of  the  injured  employe, 
and  of  other  employes  of  the  same  or  most  similar  class 
working  in  the  same  or  most  similar  employment,  in 
the  same  or  a  neighboring  locality,  shall  reasonably  rep- 
resent the  annual  earning  capacity  of  the  injured  em- 
ploye at  the  time  of  the  accident  in  the  employment  in 
which  he  was  working  at  such  time. 

(d)  The  fact  that  an  employe  has  suffered  a  previous 
disability,  or  received  compensation  therefor,  shall  not 
preclude  compensation  for  a  later  injury,  or  for  death, 
but  in  determining  compensation  for  the  later  injury, 
or  death,  his  average  annual  earnings  shall  be  such  sum 
as  will  reasonably  represent  his  annual  earning  capacity 
at  the  time  of  the  later  injury,  in  the  employment  in 
which  he  was  working  at  such  time,  and  shall  be  arrived 
at  ace  -rding  to,  and  subject  to  the  limitations  of,  the 
previous  provisions  of  this  section. 

2.  The  weekly  loss  in  wages  referred  to  in  section 
2394 — 9  shall  consist  of  such  percentage  of  the  average 
weekly  earnings  of  the  injured  employe,  computed  ac- 
cording to  the  provisions  of  this  section,  as  shall  fairly 
represent  the  proportionate  extent  of  the  impairment  of 
his  earning  capacity  in  the  employment  in  which  he  was 
working  at  the  time  of  the  accident,  the  same  to  be  fixed 
as  of  the  time  of  the  accident,  but  to  be  determined  in 
view  of  the  nature  and  extent  of  the  injury. 

3.  The  following  shall  be  conclusively  presumed  to 
be  solely  and  wholly  dependent  for  support  upon  a  de- 
ceased employe: 

(a)  A  wife  upon  a  husband  with  whom  she  is  living 
at  the  time  of  his  death. 


547  WISCONSIN  ACT.  §  227 

(b)  A  husband  upon  a  wife  with  whom  he  is  living 
at  the  time  of  her  death. 

(c)  A  child  or  children  under  the  age  of  eighteen 
years  (or  over  said  age,  but  physically  or  mentally  in- 
capacitated from  earning),  upon  the  parent  with  whom 
he  or  they  are  living  at  the  time  of  the  death  of  the 
parent,  there  being  no  surviving  dependent  parent.     In 
case  there  is  more  than  one  child  thus  dependent,  the 
death  benefit  shall  be  divided  equally  among  them. 

In  all  other  cases  questions  of  entire  or  partial  depen- 
dency shall  be  determined  in  accordance  with  the  fact, 
as  the  fact  may  be  at  the  time  of  the  death  of  the  em- 
ploye; and  in  such  other  cases,  if  there  is  more  than  one 
person  wholly  dependent,  the  death  benefits  shall  be 
divided  equally  among  them,  and  persons  partially  de- 
pendent, if  any,  shall  receive  no  part  thereof;  and  if  there 
is  more  than  one  person  partially  dependent,  the  death 
benefit  shall  be  divided  among  them  according  to  the 
relative  extent  of  their  dependency. 

4.  No  person  shall  be  considered  a  dependent  unless 
a  member  of  the  family  of  the  deceased  employe,  or 
bears  to  him  the  relation  of  husband  or  widow,  or  lineal 
descendant,  or  ancestor,  or  brother,  or  sister. 

5.  Questions  as  to  who  constitute  dependents  and 
the  extent  of  their  dependency  shall  be  determined  as 
of  the  date  of  the  accident  to  the  employe,  and  their 
right  to  any  death  benefit  shall  become  fixed  as  of  such 
time,  irrespective  of  any  subsequent  change  in  condi- 
tions; and  the  death  benefit  shall  be  directly  recoverable 
by  and  payable  to  the  dependent  or  dependents  entitled 
thereto  or  their  legal  guardians  or  trustees;  provided 
that  in  case  of  the  death  of  a  dependent  whose  right  to 
a  death  benefit  has  thus  become  fixed,  so  much  of  the 
same  as  is  then  unpaid  shall  be  recoverable  by  and  paya- 
ble to  his  personal  representative  in  gross.     No  person 
shall  be  excluded  as  a  dependent  who  is  a  non-resident 
alien. 


§  227      WORKMEN'S  COMPENSATION  AND  INSURANCE.      548 

6.  No  dependent  of  an  injured  employe  shall  be 
deemed,  during  the  life  of  such  employe,  a  party  in 
interest  to  any  proceeding  by  him  for  the  enforcement 
or  collection  of  any  claim  for  compensation,  nor  as  re- 
spects the  compromise  thereof  by  such  employe. 

Jfote  by  the  Committee: — This  section  provides  the  manner  in 
which  the  weekly  earnings  of  the  injured  employe1  may  be  arrived 
at,  and  the  rules  as  laid  down  are  as  fair  and  as  definite  as  the 
committee  could  reach.  Subsection  3  specifies  who  conclusively 
shall  be  presumed  to  be  solely  and  wholly  dependent  for  support 
upon  the  deceased  employe".  The  persons  therein  mentioned  are 
those  so  considered  under  the  present  system.  But  very  little 
departure  from  present  rules  is  found  in  this  provision. 

In  subsection  6  reference  is  made  to  a  compromise  of  the  claim 
of  the  employe  or  his  dependents  for  compensation.  This  provision 
was  inserted  after  a  considerable  debate.  It  was  felt  that  there 
should  be  no  compromise;  that  it  was  unfair  to  the  employe,  or  in 
fact  to  either  party.  Both  employers  and  employe's  object  very 
much  to  a  compromise  of  this  compensation  and  the  intention  of 
the  whole  bill  is  that  the  injured  employe  or  his  dependents  shall 
receive  the  full  compensation.  At  the  same  time  it  is  realized  that 
there  may  be  honest  differences  of  opinion  as  to  the  amount  of  such 
compensation,  and  when  a  compromise  of  the  differences  is  made 
fairly  and  honestly,  it  should  stand.  On  the  other  hand,  the  widow 
and  her  children  are  clearly  entitled  to  $1,500,  and  if  it  should  be 
compromised  for  $1,000,  such  a  compromise  should  not  be  allowed 
to  stand.  As  a  safeguard  against  such  compromises,  they  are  made 
subject  to  review  within  one  year  by  the  Industrial  Accident  board. 

Section  2394 — 11.  Notice  of  Injury. — No  claim  to 
recover  compensation  under  this  act  shall  be  maintained 
unless,  within  thirty  days  after  the  occurrence  of  the 
accident  which  is  claimed  to  have  caused  the  injury 
or  death,  notice  in  writing,  stating  the  name  and  ad- 
dress of  the  person  injured,  the  time  and  place  where 
the  accident  occurred,  and  the  nature  of  the  injury, 
and  signed  by  the  person  injured  or  by  some  one  on 
his  behalf,  or  in  case  of  his  death,  by  a  dependent  or 
some  one  on  his  behalf,  shall  be  served  upon  the  em- 
ployer, either  by  delivering  to  and  leaving  with  him  a 
copy  of  such  notice,  or  by  mailing  to  him  by  registered 
mail  a  copy  thereof  in  a  sealed  and  postpaid  envelope 


549  WISCONSIN  ACT.  §  227 

addressed  to  him  at  last  known  place  of  business  or 
residence.  Such  mailing  shall  constitute  completed  ser- 
vice. Provided,  however,  that  any  payment  of  compen- 
sation under  this  act,  in  whole  or  in  part,  made  by  the 
employer  before  the  expiration  of  said  thirty  days,  shall 
be  equivalent  to  the  notice  herein  required;  and  pro- 
vided further,  that  the  failure  to  give  any  such  notice, 
or  any  defect  or  inaccuracy  therein,  shall  not  be  a  bar 
to  recovery  under  this  act  if  it  is  found  as  a  fact  in  the 
proceedings  for  collection  of  the  claim  that  there  was 
no  intention  to  mislead  the  employer,  and  that  he  was 
not  in  fact  misled  thereby;  and  provided  further,  that 
if  no  such  notice  is  given  and  no  payment  of  compen- 
sation made,  within  two  years  from  the  date  of  the 
accident,  the  right  to  compensation  therefor  shall  be 
wholly  barred. 

Uote  by  the  committee: — This  section  provides  for  the  notice  of 
accidents  that  must  be  given  to  employers.  This  phase  has  caused 
considerable  trouble  under  different  compensation  acts  in  Europe, 
and  it  is  a  hard  subject  satisfactorily  to  settle.  The  above  provi- 
sions are  recommended  as  reasonable.  In  justice  to  employers 
there  should  be  a  time  when,  if  no  notice  has  been  given,  a  claim 
for  compensation  should  be  barred,  and  the  committee  has  fixed 
that  time  at  one  year  from  the  date  of  the  accident. 

Section  2394 — 12.  Examination  by  Physician. — 
Wherever  in  case  of  injury  the  right  to  compensation 
under  this  act  would  exist  in  favor  of  any  employe,  he 
shall,  upon  the  written  request  of  his  employer,  submit 
from  time  to  time  to  examination  by  a  regular  practic- 
ing physician,  who  shall  be  provided  and  paid  for  by 
the  employer,  and  shall  likewise  submit  to  examina- 
tion from  time  to  time  by  any  regular  physician  selected 
by  said  industrial  accident  board,  or  a  member  or  exam- 
iner thereof.  The  employe  shall  be  entitled  to  have  a 
physician,  provided  and  paid  for  by  himself,  present  at 
any  such  examination.  So  long  as  the  employe,  after 
such  written  request  of  the  employer,  shall  refuse  to 
submit  to  such  examination,  or  shall  in  any  way  ob- 


§  227      WORKMEN'S  COMPENSATION  AND  INSURANCE.      550 

struct  the  same,  his  right  to  begin  or  maintain  any  pro- 
ceeding for  the  collection  of  compensation  shall  be  sus- 
pended; and  if  he  shall  refuse  to  submit  to  such  exam- 
ination after  direction  by  the  board,  or  any  member  or 
examiner  thereof,  or  shall  in  any  way  obstruct  the  same, 
his  right  to  the  weekly  indemnity  which  shall  accrue 
and  become  payable  during  the  period  of  such  refusal 
or  obstruction,  shall  be  barred.  Any  physician  who 
shall  make  or  be  present  at  any  such  examination  may 
be  required  to  testify  as  to  the  results  thereof. 

Note  by  the  committee:— In  this  section  there  is  a  provision  for 
examination  of  the  injured  person  by  a  physician  employed  by  the 
employer.  The  employe,  however,  is  protected  by  the  right  to  have 
his  own  physician  present.  In  case  any  member  of  the  Industrial 
Commission  of  Wisconsin,  or  its  examiner  orders  an  injured  em- 
ploye to  be  examined,  and  he  refuses,  his  right  to  compensation 
during  the  period  of  such  refusal  shall  be  barred.  These  provisions, 
we  think,  are  just  and  right;  if  the  right  to  compensation  were 
merely  suspended  during  the  time  that  the  employe  refused  to  be 
examined,  the  employer  would  be  without  protection  against  unjust 
claims.  If  the  injured  employe"  recovered  there  would  be  no  way  of 
telling  the  extent  of  his  injury  or  disability  at  the  time  he  refused 
to  be  examined.  This  section  also  provides  that  physicians  so 
employed  may  be  required  to  testify  as  to  the  results  of  examinations. 

Section  2394 — 13.  Creation  of  Board. — There  is 
hereby  created  a  board  which  shall  be  known  as  the 
industrial  accident  board.2a  The  commissioner  of  labor 
and  industrial  statistics  shall  be  ex-officio  a  member  of 
such  board.  He  may,  however,  authorize  the  deputy 
commissioner  to  act  in  his  place.  Within  thirty  days 
after  the  passage  of  this  act,  the  governor,  by  and  with 
the  advice  and  consent  of  the  senate,  shall  appoint  a 
member  who  shall  serve  two  years,  and  another  who 
shall  serve  four  years.  Thereafter  such  two  members 
shall  be  appointed  and  confirmed  for  terms  of  four 
years  each.  Vacancies  shall  be  filled  in  the  same  man- 

2aThe  Industrial  Accident  Board  has  been  superseded  by  the 
Industrial  Commission  of  Wisconsin.  See  §  2394 — 42,  ch.  485,  485, 
Laws  of  Wisconsin  for  1911. 


551  WISCONSIN    ACT.  § 

ner  for  the  unexpired  term.  Each  member  of  the  board, 
before  entering  upon  the  duties  of  his  office,  shall  take 
the  oath  prescribed  by  the  constitution.  A  majority 
of  the  board  shall  constitute  a  quorum  for  the  exercise 
of  any  of  the  powers  or  authority  conferred  by  this  act, 
and  an  award  by  a  majority  shall  be  valid.  In  case  of 
a  vacancy,  the  remaining  two  members  of  the  board 
shall  exercise  all  the  powers  and  authority  of  the  board 
until  such  vacancy  is  filled.  Each  member  of  the  board, 
including  the  said  commissioner,  shall  receive  an  annual 
salary  of  $5,000.  This  salary  shall,  as  to  the  commis- 
sioner of  labor  and  industrial  statistics,  be  in  full  for 
his  services  as  such  commissioner  of  labor  and  indus- 
trial statistics. 

Section  2394 — 14.  Organization  of  Board.3 — The 
board  shall  organize  by  choosing  one  of  its  members 
as  chairman.  Subject  to  the  provisions  of  this  act,  it 
may  adopt  its  own  rules  of  procedure  and  may  change 
the  same  from  time  to  time  in  its  discretion.  The  board, 
when  it  shall  deem  it  necessary  to  expedite  its  business, 
may  from  time  to  time  employ  one  or  more  expert 
examiners  for  such  length  of  time  as  may  be  required, 
such  examiners  to  be  exempt  from  the  operation  of 
chapter  363  of  the  laws  of  1905,  and  amendatory  acts. 
It  may  also  appoint  a  secretary,  who  shall  be  similarly 
exempt,  and  such  clerical  help  as  it  may  deem  necessary. 
It  shall  fix  the  compensation  of  all  assistants  so  ap- 
pointed. It  shall  provide  itself  with  a  seal  for  the  authen- 
tication of  its  orders,  awards,  and  proceedings,  upon 
which  shall  be  inscribed  the  words  "Industrial  Acci- 
dent Board — Wisconsin — Seal."  It  shall  keep  its  office 
at  the  capitol,  and  shall  be  provided  by  the  superin- 
tendent of  public  property  with  a  suitable  room  or 
rooms,  necessary  office  furniture,  stationery,  and  other 
supplies.  The  members  of  the  board  and  its  assistants 

3  Board    superseded   by   Industrial    Commission    of   Wisconsin. 
See  §  2394—42,  ch.  485  Laws  Wis.  1911. 


§  227      WORKMEN'S  COMPENSATION  AND  INSURANCE.      552 

shall  be  entitled  to  receive  from  the  state  their  actual 
and  necessary  expenses  while  traveling  on  the  business 
of  the  board;  but  such  expenses  shall  be  sworn  to  by 
the  person  who  incurred  the  same,  and  be  approved  by 
the  chairman  of  the  board,  before  payment  is  made. 
All  salaries  and  expenses  authorized  by  this  act  shall  be 
audited  and  paid  out  of  the  general  funds  of  the  state, 
the  same  as  other  general  state  expenses  are  audited 
and  paid. 

Section  2394 — 15.  Submission  of  Disputes. — Any 
dispute  or  controversy  concerning  compensation  under 
this  act,  including  any  in  which  the  state  may  be  a  party, 
shall  be  submitted  to  said  industrial  accident  board  in 
the  manner  and  with  the  effect  provided  in  this  act. 
Every  compromise  of  any  claim  for  compensation  under 
this  act  shall  be  subject  to  be  reviewed  by,  and  set  aside, 
modified,  or  confirmed  by  the  board  upon  application 
made  within  one  year  from  the  time  of  such  com- 
promise. 

Section  2394 — 16.  Notice  of  Hearing. — Upon  the 
filing  with  the  board  by  any  party  in  interest  of  an  appli- 
cation in  writing  stating  the  general  nature  of  any 
claim  as  to  which  any  dispute  or  controversy  m,ay  have 
arisen,  it  shall  fix  a  time  for  the  hearing  thereof,  which 
shall  not  be  more  than  forty  days  after  the  filing  of 
such  application.  The  board  shall  cause  notice  of  such 
hearing,  embracing  a  general  statement  of  such  claim, 
to  be  given  to  each  party  interested,  by  service  of  such 
notice  on  him  personally  or  by  mailing  a  copy  thereof 
to  him  at  his  last  known  postoffice  address  at  least  ten 
days  before  such  hearing.  Such  hearing  may  be  ad- 
journed from  time  to  time  in  the  discretion  of  the  board 
and  hearings  may  be  held  at  such  places  as  the  board 
shall  designate.  Either  party  shall  have  the  right  to 
be  present  at  any  hearing,  in  person  or  by  attorney,  or 
any  other  agent,  and  to  present  such  testimony  as  may  be 
pertinent  to  the  controversy  before  the  board;  but  the 


$53  WISCONSIN   ACT.  § 

board  may,  with  or  without  notice  to  either  party,  cause 
testimony  to  be  taken,  or  an  inspection  of  the  premises 
where  the  injury  occurred  to  be  had,  or  the  time  books 
and  pay-roll  of  the  employer  to  be  examined  by  any 
member  of  the  board  or  any  examiner  appointed  by 
it,  and  may  from  time  to  time  direct  any  employe  claim- 
ing compensation  to  be  examined  by  a  regular  physi- 
cian; the  testimony  so  taken,  and  the  results  of  any 
such  inspection  or  examination,  to  be  reported  to  the 
board  for  its  consideration  upon  final  hearing.  The 
board,  or  any  member  thereof,  or  any  examiner  ap- 
pointed thereby,  shall  have  power  and  authority  to 
issue  subpoenas,  to  compel  the  attendance  of  witnesses 
or  parties,  and  the  production  of  books,  papers,  or 
records,  and  to  administer  oaths.  Obedience  to  such 
subpoenas  shall  be  enforced  by  the  circuit  court  of  any 
county. 

Section  2394 — 17.  Findings  and  Awards. — After 
final  hearing  by  said  board,  it  shall  make  and  file  (1)  its 
findings  upon  all  facts  involved  in  the  controversy,  and 
(2)  its  awards,  which  shall  state  its  determination  as 
to  the  rights  of  the  parties.  Pending  the  hearing  and 
determination  of  any  controversy  before  it,  the  board 
shall  have  power  to  order  the  payment  of  such,  or 
any  part,  of  the  compensation,  which  is  or  may  fall  due, 
as  to  which  the  party  from  whom  the  same  is  claimed 
does  not  deny  liability  in  good  faith  within  ten  days 
after  the  giving  of  notice  of  hearing  provided  for  in  the 
preceding  section;  and  if  the  same  shall  not  be  paid  as 
required  by  such  order,  the  facts  with  respect  to  the 
liability  therefor,  and  the  determination  of  the  board 
as  to  the  rights  of  the  parties,  shall  be  embraced  in,  and 
constitute  a  part  of  its  findings  and  awards;  and  the 
board  shall  have  the  power  to  include  in  its  award, 
as  a  penalty  for  non-compliance  with  any  such  order, 
not  exceeding  twenty-five  per  cent,  of  each  amount 
which  shall  not  have  been  paid  as  directed  thereby. 


§  227      WORKMEN'S  COMPENSATION  AND  INSURANCE.      554 

Note  by  the  Committee: — These  sections  provide  for  the  tribunal 
by  which  all  disputes  between  employer  and  employe  in  regard  to 
compensation  shall  be  settled.  In  order  to  obtain  uniformity  of 
decisions  and  uniformity  of  administration  of  the  bill,  it  was  deemed 
necessary  to  have  a  state  board.  The  success  of  this  measure  will 
depend  to  a  great  extent  upon  the  character  of  the  men  who  consti- 
tute this  board.  Their  salary,  therefore,  is  placed  at  a  sum,  which 
in  the  opinion  of  the  committee,  should  secure  thoroughly  compe- 
tent men;  men  who  will  have  the  confidence  of  both  employer  and 
employe",  who  will  be  in  sympathy  with  the  objects  intended  to  be 
attained,  and  who  will  have  ability  to  carry  out  the  provisions  of 
the  act  in  such  a  manner  as  will  meet  with  the  approbation  of  both 
employer  and  employ^.  There  undoubtedly  will  be  a  great  many 
disputes,  especially  in  the  early  administration  of  the  bill,  for  this 
board  to  decide,  and  in  order  to  facilitate  its  work,  it  is  empowered 
to  employ,  "from  time  to  time,"  expert  examiners,  who  can  take  the 
testimony,  examine  the  situation,  and  report  to  the  board.  There 
may  be  times  when  the  board  will  be  compelled  to  have  several 
examiners  for  a  week,  two  weks,  or  a  month  at  a  time,  and  at  other 
times  it  may  need  more.  Provision  of  this  kind  is  absolutely  neces- 
sary. These  disputes  must  be  settled  promptly  and  summarily,  so 
that  the  injured  employe"  may  have  the  benefit  of  his  compensation. 

The  expense  of  the  administration  of  the  act  is  fixed  upon  the 
state.  The  state  can  well  afford  to  bear  this  expense,  as  its  courts 
will  be  relieved  of  a  large  amount  of  work,  and  the  burden  now 
placed  upon  taxpayers  by  the  trial  of  negligence  cases  will  be  min- 
imized. This  committee  hopes  that  the  tendency  of  this  act  will  be 
to  produce  good  will  between  employer  and  employe,  and  to  lessen 
the  cases  of  hardship  among  dependents  of  injured  employes.  In  tak- 
ing into  consideration  the  state's  many  vital  interests  in  the  welfare 
of  the  workman  and  his  family,  this  committee  concludes  that  the 
state  may  well  afford  to  bear  the  expense  of  the  administration  of 
this  bill. 

Section  2394 — 18.  Filing  of  Judgment. — Either 
party  may  present  a  certified  copy  of  the  award  to  the 
circuit  court  for  any  county,  whereupon  said  court  shall, 
without  notice,  render  a  judgment  in  accordance  there- 
with; which  judgment,  until  and  unless  set  aside  as 
hereinafter  provided,  shall  have  the  same  effect  as 
though  duly  rendered  in  an  action  duly  tried  and  deter- 
mined by  said  court,  and  shall,  with  like  effect,  be  en- 
tered and  docketed. 

Section  2394 — 19.     Review  by  Court. — The  findings 


555  WISCONSIN  ACT.  §227 

of  fact  made  by  the  board  acting  within  its  powers  shall, 
in  the  absence  of  fraud,  be  conclusive;  and  the  award, 
whether  judgment  has  been  rendered  thereon  or  not, 
shall  be  subject  to  review  only  in  the  manner  and  upon 
the  grounds  following:  Within  twenty  days  from  the 
date  of  the  award,  any  party  aggrieved  thereby  may  com- 
mence, in  the  circuit  court  for  Dane  county,  an  action 
against  the  board  for  the  review  of  such  award,  in  which 
action  the  adverse  party  shall  also  be  made  defendant. 
In  such  action  a  complaint,  which  shall  also  state  the 
grounds  upon  which  a  review  is  sought,  shall  be  served 
with  the  summons.  Service  upon  the  secretary  of  the 
board,  or  any  member  of  the  board,  shall  be  deemed 
completed  service.  The  board  shall  serve  its  answer 
within  twenty  days  after  the  service  of  the  complaint, 
and,  within  the  like  time,  such  adverse  party  shall,  if  he 
so  desires,  serve  his  answer  to  said  complaint.  With 
its  answer,  the  board  shall  make  return  to  said  court 
of  all  documents  and  papers  on  file  in  the  matter,  and  of 
all  testimony  which  may  have  been  taken  therein,  and 
of  its  findings  and  award.  Said  action  may  thereupon 
be  brought  on  for  hearing  before  said  court  upon  such 
record  by  either  party  on  ten  days'  notice  to  the  other; 
subject,  however,  to  the  provisions  of  law  for  a  change 
of  the  place  of  trial  or  the  calling  in  of  another  judge. 
Upon  such  hearing,  the  court  may  confirm  or  set  aside 
such  award;  and  any  judgment  which  may  theretofore 
have  been  rendered  thereon;  but  the  same  shall  be  set 
aside  only  upon  the  following  grounds: 

1.  That   the  board   acted  without   or   in   excess   of 
its  powers. 

2.  That  the  award  was  procured  by  fraud. 

3.  That  the  findings  of  fact  by  the  board  do  not 
support  the  award. 

Note  by  the  committee:— The  finding  of  the  commission,  in  the 
absence  of  fraud,  is  made  absolutely  conclusive  by  this  section. 
The  award  is  reviewable  only  on  three  grounds:  (1)  That  the 


§  227     WORKMEN'S  COMPENSATION  AND  INSURANCE.      556 

commission  acted  without  or  in  excess  of  its  powers;  (2)  that  the 
award  was  procured  by  fraud;  (3)  that  the  findings  of  fact  by  the 
commission  do  not  support  the  award.  This  review  does  not  allow 
any  re-trial  of  the  case  as  presented  to  the  commission.  The  facts 
found  by  the  commission  are  conclusive,  and  the  review  that  is 
allowed  in  those  cases  where  the  findings  of  fact  do  not  support  the 
award,  would  occur  only  where  the  commission  had  not  given 
proper  consideration  to  the  act  itself.  In  other  words,  the  court  will 
review  only  questions  of  law  included  in  grounds  1  and  3  upon 
which  an  award  may  be  reviewed.  The  fraud  alluded  to  in  the 
second  ground  will  be  only  such  as  was  perpetrated  in  procuring 
the  award  and  will  not  include  false  testimony  of  any  party, 
because  such  questions  all  will  be  decided  conclusively  by  the  com- 
mission. The  object  of  having  the  action  to  review  brought  against 
the  commission  is  twofold:  (1)  If  any  error  is  made  it  will  be  an 
error  made  by  the  commission,  the  fraud  of  the  commission  that 
may  be  subject  to  review.  Consequently,  the  commission  should 
defend  its  own  action,  and  this  will  be  done  at  the  expense  of  the 
state.  (2)  To  relieve  the  party  in  whose  favor  the  award  was  made 
of  the  expense  of  litigation  in  the  circuit  and  Supreme  Courts.  This 
is  in  conformity  with  the  practice  adopted  in  the  Railroad  Rate 
Commission  Law.  The  commission  defends  its  own  orders. 

Section  2394 — 20.  Remanding  of  Record. — Upon 
the  setting  aside  of  any  award  the  court  may  recommit 
the  controversy  and  remand  the  record  in  the  case  to 
the  board,  for  further  hearing  or  proceedings;  or  it  may 
enter  the  proper  judgment  upon  the  findings,  as  the 
nature  of  the  case  shall  demand.  An  abstract  of  the 
judgment  entered  by  the  trial  court  upon  the  review  of 
any  award  shall  be  made  by  the  clerk  thereof  upon  the 
docket  entry  of  any  judgment  which  may  theretofore 
have  been  rendered  upon  such  award,  and  transcripts  of 
such  abstract  may  thereupon  be  obtained  for  like  entry 
upon  the  dockets  of  the  courts  of  other  counties. 

Section  2394 — 21.  Appeal  from  Award. — Said  board, 
or  any  party  aggrieved  by  a  judgment  entered  upon 
the  review  of  any  award,  may  appeal  therefrom  within 
the  time  and  in  the  manner  provided  for  an  appeal 
from  the  orders  of  the  circuit  court;  but  all  such  ap- 
peals shall  be  placed  on  the  calendar  of  the  Supreme 


557  WISCONSIN  ACT.  §  227 

Court  and  brought  to  a  hearing  in  the  same  manner 
as  state  causes  on  such  calendar. 

Section  2394 — 22.  Fees  and  Costs. — No  fees  shall 
be  charged  by  the  clerk  of  any  court  for  the  perform- 
ance of  any  official  service  required  by  this  act,  except 
for  the  docketing  of  judgments  and  for  certified  copies 
of  transcripts  thereof.  In  proceedings  to  review  an 
award,  costs  as  between  the  parties  shall  be  allowed 
or  not  in  the  discretion  of  the  court,  but  no  costs  shall 
be  taxed  against  said  board.  In  any  action  for  the  re- 
view of  an  award,  and  upon  any  appeal  therein  to  the 
Supreme  Court,  it  shall  be  the  duty  of  the  attorney  gen- 
eral, personally,  or  by  an  assistant,  to  appear  on  behalf 
of  the  board,  whether  any  other  party  defendant  shall 
have  appeared  or  be  represented  in  the  action  or  not. 
Unless  previously  authorized  by  the  board,  no  lien  shall 
be  allowed,  nor  any  contract  be  enforceable,  for  any 
contingent  attorney's  fee  for  the  enforcement  or  collec- 
tion of  any  claim  for  compensation  where  such  con- 
tingent fee,  inclusive  of  all  taxable  attorneys'  fees  paid 
or  agreed  to  be  paid  for  the  enforcement  or  collection 
of  such  claims,  exceeds  ten  per  cent,  of  the  amount  at 
which  such  claim  shall  be  compromised,  or  of  the 
amount  awarded,  adjudged,  or  collected. 

Kote  by  the  commission: — These  sections  provide  for  the  proper 
judgment  in  the  circuit  court  and  the  remanding  of  the  case  to  the 
commission,  and  then  for  appeal  to  the  Supreme  court  and  the 
practice  thereof. 

Section  2394 — 23.  Assignment  of  Claim. — No  claim 
for  compensation  under  this  act  shall  be  assignable  be- 
fore payment,  but  this  provision  shall  not  affect  the 
survival  thereof;  nor  shall  any  claim  for  compensation, 
or  compensation  awarded,  adjudged,  or  paid,  be  sub- 
ject to  be  taken  for  the  debts  of  the  party  entitled 
thereto. 

Note  by  the  Committee:— This  section  provides  that  no  claim 
lor  compensation  shall  be  assignable,  this  being  necessary  in  order 


§  227      WORKMEN'S  COMPENSATION  AND  INSURANCE.      558 

to  protect  the  injured  employe"  and  his  dependents.  If  the  claim 
were  made  assignable  he  could  sell  it  for  a  small  sum,  and  thus 
deprive  his  dependents  of  benefits  to  which  they  are  entitled.  The 
compensation  also  is  made  exempt  from  his  debts  on  the  same  prin- 
ciple that  wages  now  are  made  exempt.  Provision  also  is  made  to 
limit  the  amount  of  attorney's  fees.  The  justice  and  fairness  of  this 
should  be  conceded  by  all.  The  New  York  law  has  a  provision  of 
similar  import. 

Section  2394 — 24.  Preference  of  Claim. — The  whole 
claim  for  compensation  for  the  injury  or  death  of  any 
employe  or  any  award  or  judgment  thereon,  shall  be 
entitled  to  a  preference  over  the  unsecured  debts  of  the 
employer  hereafter  contracted,  but  this  section  shall 
not  impair  the  lien  of  any  judgment  entered  upon  any 
award. 

Note  by  the  Committee: — After  a  great  deal  of  discussion  this 
was  the  only  security  that  the  committee  was  able  to  devise.  It 
seems  to  us  to  be  practicable  for  the  injured  employe,  and  to  give 
him  the  same  preference  that  he  now  has  for  his  wages. 

Section  2394 — 25.  Third  Party  Liability.— The  mak- 
ing of  a  lawful  claim  against  an  employer  for  compen- 
sation under  this  act  for  the  injury  or  death  of  his  em- 
ploye shall  operate  as  an  assignment  of  any  cause  of 
action  in  tort  which  the  employe  or  his  personal  repre- 
sentative may  have  against  any  other  party  for  such 
injury  or  death;  and  such  employer  may  enforce  in  his 
own  name  the  liability  of  such  other  party. 

Note  by  the  Committee: — This  section  provides  for  those  cases 
where  even  though  the  injury  or  death  be  caused  by  the  tort  of  a 
third  person,  still  the  employer  must  pay  compensation  under  this 
act.  In  this  section  the  employe  is  given  power  to  elect  to  sue  at 
law  for  the  tort  against  the  third  person  or  to  claim  his  compensa- 
tion. If  he  claims  his  compensation,  then  his  employer  is  to  have 
the  right  in  his  own  name  to  enforce  the  liability  against  the  third 
person. 

Section  2394 — 26.  Insurance  Provisions. — Nothing 
in  this  act  shall  affect  the  organization  of  any  mutual 
or  other  insurance  company,  or  any  existing  contract 
for  insurance  of  employers'  liability,  nor  the  right  of 


559  WISCONSIN  ACT.  §  227 

the  employer  to  insure  in  mutual  or  other  companies, 
in  whole  or  in  part,  against  such  liability,  or  against  the 
liability  for  the  compensation  provided  for  by  this  act, 
or  to  provide  by  mutual  or  other  insurance,  or  by  ar- 
rangement with  his  employes,  or  otherwise,  for  the  pay- 
ment to  such  employes,  their  families,  dependents, 
or  representatives,  of  sick,  accident,  or  death  benefits 
in  addition  to  the  compensation  provided  for  by  this 
act.  But  liability  for  compensation  under  this  act 
shall  not  be  reduced  or  affected  by  any  insurance,  con- 
tribution, or  other  benefits  whatsoever,  due  to  or  re- 
ceived by  the  person  entitled  to  such  compensation,  and 
the  person  so  entitled  shall,  irrespective  of  any  insur- 
ance or  other  contract,  have  the  right  to  recover  the 
same  directly  from  the  employer;  and  in  addition  there- 
to, the  right  to  enforce  in  his  own  name,  in  the  manner 
provided  in  this  act,  the  liability  of  any  insurance  com- 
pany which  may,  in  whole  or  in  part,  have  insured  the 
liability  for  such  compensation;  provided,  however,  that 
payment  in  whole  or  in  part  of  such  compensation  by 
either  the  employer  or  the  insurance  company,  shall, 
to  the  extent  thereof,  be  a  bar  to  recovery  against  the 
other  of  the  amount  so  paid,  and  provided  further,  that 
as  between  the  employer  and  the  insurance  company, 
payment  by  either  directly  to  the  employe,  or  to  the  per- 
son entitled  to  compensation,  shall  be  subject  to  the 
conditions  of  the  insurance  contract  between  them. 

Section  2394 — 27.  Every  contract  for  the  insurance 
of  the  compensation  herein  provided  for,  or  against 
liability  therefor,  shall  be  deemed  to  be  made  subject  to 
the  provisions  of  this  act,  and  provisions  thereof  in£on- 
sistent  with  this  act  shall  be  void.  No  company  shall 
enter  into  any  such  contract  of  insurance  unless  such 
company  shall  have  been  approved  by  the  commissioner 
of  insurance,  as  provided  by  law.  For  the  purposes 
of  this  act,  each  employe  shall  constitute  a  separate 
risk  within  the  meaning  of  section  1898d  of  the  statutes. 


§  227      WORKMEN'S  COMPENSATION  AND  INSURANCE.      560 

Jfote  by  the  Committee: — Industrial  insurance  is  the  name  most 
commonly  applied  to  workmen's  compensation  acts,  and  conveys 
the  meaning  that  there  is  some  plan  of  insurance.  In  the  first 
tentative  bills  of  this  committee,  the  plan  of  insurance  was  brought 
forth,  but  after  full  and  mature  discussion  it  was  decided  that  it 
would  be  better  to  leave  the  employer  free  to  determine  for  himself 
the  best  means  of  taking  care  of  the  liability  created.  The  com- 
mittee felt  that  to  lay  down  a  plan  of  insurance  would  be  to  put  on 
a  limitation  that  might  handicap  employers  and  leave  them  at  the 
mercy  of  a  certain  class  of  insurance  companies.  We  recognize 
the  great  benefits  to  employes  of  what  are  known  as  sick,  accident, 
and  death  benefit  societies  now  in  effect  in  many  large  institutions, 
and  we  much  prefer  to  leave  this  whole  matter  open  in  such  a  way 
as  to  encourage  the  formation  of  these  sick,  accident,  and  death 
benefit  societies.  Under  section  26  we  have  given  to  employers  an 
opportunity  to  organize,  under  the  laws  of  this  state,  mutual  insur- 
ance companies  to  carry  the  new  risk.  Strong  mutual  insurance 
companies  clearly  have  been  shown  to  be  the  cheapest,  safest,  and 
most  reliable  method  by  which  the  risk  herein  created  can  be  taken 
care  of. 

Section  2394 — 28.  Release  from  Liability. — Any  em- 
ployer against  whom  liability  may  exist  for  compensa- 
tion under  this  act  may,  with  the  approval  of  the  indus- 
trial accident  board,  be  relieved  therefrom  by: 

1.  Depositing  the  present  value  of  the  total  unpaid 
compensation  for  which  such  liability  exists,  assuming 
interest  at  three  per  centum  per  annum,  with  such  trust 
company  of  this  state  as  shall  be  designated  by  the  em- 
ploye (or  by  his  dependents,  in  case  of  his  death,  and 
such  liability  exists  in  their  favor),  or  in  default  of  such 
designation  by  him  (or  them)  after  ten  days'  notice  in 
writing  from  the  employer,  with  such  trust  company  of 
this  state  as  shall  be  designated  by  the  board;  or 

2.  By  the  purchase  of  an  annuity,  within  the  limita- 
tions provided  by  law,  in  any  insurance  company  grant- 
ing annuities  and  licensed  in  this  state,  which  may  be 
designated  by  the  employe,  or  his  dependents,  or  the 
board,  as  provided  in  subsection  1  of  this  section. 

Note  by  the  Committees — The  mutual  interests  of  employer  and 
employ^  are  safeguarded  in  an  important  way  in  this  section.  It 
enables  the  employer,  who  is  liable  for  compensation  and  who 


- 


561  WISCONSIN   ACT.  §227 

desires  to  be  relieved  thereof,  to  deposit  the  lump  sum  to  cover  such 
liability,  with  a  trust  company  or  with  an  insurance  company  with 
directions  to  make  weekly  payments  as  specified  in  this  act,  and 
thereby  be  released.  This  is  also  a  convenience  and  a  safeguard  to 
the  employe,  as  the  money  to  be  paid  him  is  protected  by  state  laws 
in  such  a  way  as  to  eliminate  danger  of  loss. 

Section  2394 — 29.  Posting  of  Notices.— The  board 
shall  cause  to  be  printed  and  furnished  free  of  charge 
to  any  employer  or  employes  such  blank  forms  as  it 
shall  deem  requisite  to  facilitate  or  promote  the  efficient 
administration  of  this  act;  it  shall  provide  a  proper 
record  book  in  which  shall  be  entered  and  indexed  the 
name  of  every  employer  who  shall  file  a  statement  of 
election  under  this  act,  and  the  date  of  the  filing  there- 
of, and  a  separate  book  in  which  shall  be  entered  and 
indexed  the  name  of  every  employer  who  shall  file  his 
notice  of  withdrawal  of  such  election,  and  the  date  of 
the  filing  thereof;  and  books  in  which  shall  be  recorded 
all  orders  and  awards  made  by  the  board,  and  such  other 
books  or  records  as  it  shall  deem  required  by  the  proper 
and  efficient  administration  of  this  act;  all  such  records 
to  be  kept  in  the  office  of  the  board.  Upon  the  filing  of 
a  statement  of  election  by  an  employer  to  become  sub- 
ject to  the  provisions  of  this  act,  the  board  shall  forth- 
with cause  notice  of  the  fact  to  be  given  to  his  em- 
ployes, by  posting  such  notice  thereof  in  several  con- 
spicuous places  in  the  office,  shop,  or  place  of  business 
of  the  employer,  or  by  publishing,  or  in  such  other  man- 
ner as  the  board  shall  deem  most  effective;  and  the 
board  shall  likewise  cause  notice  to  be  given  of  the  filing 
of  any  withdrawal  of  such  election;  but  notwithstanding 
the  failure  to  give,  or  the  insufficiency  of,  any  such 
notice,  knowledge  of  all  filed  statements  of  election  and 
notices  of  withdrawal  of  election,  and  of  the  time  of 
the  filing  of  the  same,  shall  conclusively  be  imputed 
to  all  employes. 

Note  by  the  Commission:— This  simply  provides  that  the  Indus- 
trial Commission  of  Wisconsin  shall  furnish  notices  to  employers 
36— BOTD  w  o 


§  228     WORKMEN'S  COMPENSATION  AND  INSURANCE.      562 

and  employes  of  the  election  by  the  former  to  come  within  the  pro- 
visions of  this  act.  It  must  also  furnish  effective  notice  of  the 
withdrawal  of  any  election  by  aa  employer.  This  section  also 
provides  for  the  keeping  of  a  record  of  employers  who  have  filed 
their  election,  and  those  who  have  filed  notice  of  withdrawal.  A 
book  in  which  the  orders  and  awards  of  the  commission  are  to  be 
filed,  is  required  by  this  section.  It  was  deemed  best  by  the  com- 
mittee that  these  notices  of  election  and  withdrawal  should  be  given 
officially  by  the  board,  because  any  other  plan  might  lead  to  uncer- 
tainty as  to  when  an  employe  was  under  the  act.  Under  any  other 
plan  the  only  way  to  determine  whether  an  employe1  was  within 
the  provisions  of  the  act  would  be  by  a  suit  in  the  courts,  which 
would  occasion  long  and  disastrous  litigation. 

Section  2394 — 30.  Appropriation. — A  sum  sufficient 
to  carry  out  the  provisions  of  this  act  is  hereby  appro- 
priated out  of  any  money  in  the  treasury  not  otherwise 
appropriated. 

§  228.  The  opinion  of  the  Supreme  Court  of 
Wisconsin  sustaining  constitutionality  of  act. — The 
constitutionality  of  this  statute  was  determined  in  a 
suit  brought  by  Edward  G.  Borgnis  against  the  Falk 
Company,  3ato  restrain  the  defendant  from  adopting  the 
workmen's  compensation  law  during  the  continuance 
of  the  contract  of  employment  of  the  complainant.  The 
lower  court  sustained  the  contention  of  the  complain- 
ant. There  was  an  appeal  from  the  decree  which  re- 
sulted in  a  reversal.  The  opinion  of  Chief  Justice  Wins- 
low  and  the  concurring  opinions  of  Justices  Barnes  and 
Marshall  are  able  presentations  of  the  fundamental 
principles  of  these  laws  and  are  therefore  inserted  in 
their  entirety.  Says  the  Chief  Justice: 

"We  are  not  certainly  advised  as  to  the  exact  ground 
on  which  the  decision  below  was  reached,  but  we  as- 
sume that  it  was  on  the  theory  that  the  law  in  question 
was  a  valid  law;  that  it  was  retrospective  in  its  effect, 
and  that  if  the  defendant  elected  to  become  subject  to 
the  act  the  plaintiffs  would  be  compelled  to  breach  their 
existing  contracts  or  submit  to  the  terms  of  the  act,  and 
thus  lose  valuable  rights;  and  hence  that  equity  might 
3a  Borgnis  v.  Falk  Company,  147  Wis.  327,  133  N.  W.  209. 


563  WISCONSIN    ACT.  §  228 

and  should  restrain  their  employer  from  electing  to 
come  under  the  law  until  their  existing  contracts  had 
expired. 

"It  seems  to  be  true  that  this  action  might  very  well 
be  disposed  of  without  considering  the  question  of  the 
validity  of  the  act  in  question.  Ordinarily  under  such 
circumstances  that  course  would  be  the  proper  one  to 
pursue,  for  the  question  of  the  constitutionality  of  a 
statute  passed  by  the  Legislature  is  not  one  to  be  light- 
ly taken  up,  and  generally  such  a  question  will  not  be 
decided  unless  it  be  necessary  to  decide  it  in  order  to 
dispose  of  the  case.  There  are  circumstances  here  pres- 
ent, however,  which  seem  to  call  very  loudly  for  im- 
mediate consideration  of  the  question  of  the  validity  of 
the  act  in  question,  if  under  any  view  of  the  case  it  can 
be  considered  as  involved.  The  legislature,  in  response 
to  a  public  sentiment  which  cannot  be  mistaken,  has 
passed  a  law  which  attempts  to  solve  certain  very  press- 
ing problems  which  have  arisen  out  of  the  changed  in- 
dustrial conditions  of  our  time.  It  has  endeavored  by 
this  law  to  provide  a  way  by  which  employer  and  em- 
ployed may,  if  they  so  choose,  escape  entirely  from  that 
very  troublesome  and  economically  absurd  luxury 
known  as  "personal  injury  litigation,"  and  resort  to  a 
system  by  which  every  employe  not  guilty  of  willful 
misconduct  may  receive  at  once  a  reasonable  recom- 
pense for  injuries  accidentally  received  in  his  employ- 
ment under  certain  fixed  rules,  without  a  lawsuit  and 
without  friction. 

"A  considerable  number  of  employers  have  accepted 
the  terms  of  the  act,  but  unquestionably  many  are  wait- 
ing until  the  question  of  the  constitutionality  of  the  act 
be  authoritatively  settled  by  this  court.  Nor  is  this 
attitude  either  blameworthy  or  surprising.  If  an  em- 
ployer elects  to  accept  the  act  and  proceeds  to  pay  out 
the  sums  which  it  requires  for  a  year  or  more,  and  then 
the  act  should  be  declared  unconstitutional,  it  might 


§  228      WORKMEN'S  COMPENSATION  AND  INSURANCE.      564 

well  be  that  he  would  have  paid  out  considerable  sums 
which  under  the  former  system  he  would  not  be  re- 
quired to  pay  at  all,  because  he  was  not  negligent,  and 
that  he  would  also  be  subject  to  suits  to  recover  addi- 
tional sums  by  those  who,  without  contributory  negli- 
gence, had  suffered  injury  and  had  received  compensa- 
tion under  the  law.  The  situation  is  unquestionably 
one  of  much  doubt  and  uncertainty  among  the  great 
industries  of  the  state,  and  it  must  remain  such  until 
this  court  has  spoken.  Many  employers  of  labor  who 
have  not  accepted  the  law  have  taken  that  course,  not 
because  they  have  chosen  definitely  to  decline  the  terms 
of  the  law,  but  because  they  do  not  know  whether  they 
will  be  protected  if  they  accept  and  act  under  it.  Such 
a  condition  of  uncertainty  ought  not  to  be  allowed  to 
exist,  if  it  can  be  removed.  This  court  can  not  properly 
decide  questions  which  are  not  legitimately  involved 
in  bona  fide  lawsuits,  but  it  may  properly  deci  Je  all 
questions  which  are  so  involved,  even  though  it  be  not 
absolutely  essential  to  the  result  that  all  should  be  de- 
cided. The  validity  of  the  statute  in  question  is  a  mat- 
ter which  may  be  legitimately  considered  in  the  deci- 
sion of  this  case.  If  the  statute  be  unconstitutional  and 
void,  then  it  is  certain  that  the  plaintiffs  have  no  cause 
of  action,  because  an  election  to  accept  the  terms  of  a 
void  statute  could  harm  no  one.  Impressed  with  this 
view  of  our  duty  under  the  circumstances,  we  advanced 
the  present  case  upon  the  calendar,  and  invited  argu- 
ment upon  the  main  question  as  to  the  constitutionality 
of  the  statute,  not  only  from  the  Attorney  General  on 
behalf  of  the  state,  but  from  any  attorney  interested  in 
the  question.  In  pursuance  of  this  invitation  the  At- 
torney General  and  the  industrial  commission  filed 
briefs,  and  oral  argument  was  made  by  the  Deputy  At- 
torney General.  The  case  has  been  fully  presented, 
therefore,  both  by  brief  and  argument,  and  we  are  now 
to  consider  whether  there  be  any  solid  foundation  for 


565  WISCONSIN   ACT.  §  228 

the  attack  made  upon  the  law.  In  undertaking  this 
task  it  will  be  necessary  first  to  set  forth  in  some  detail 
its  fundamental  provisions. 

"It  adds  32  new  sections  to  the  statutes,  the  first  8  of 
which  sections  are  as  follows :  *  *  * 

"By  a  later  act  passed  at  the  same  session  of  the 
Legislature  (chapter  485,  Laws  1911)  an  industrial 
commission,  composed  of  three  members,  was  created, 
which,  among  numerous  other  duties,  is  required  to 
perform  all  the  duties  vested  in  the  industrial  acci- 
dent board  aforesaid,  and  thus  the  last-named  board 
has  passed  out  of  existence.  In  re  Filer  &  Stowell  Co., 
(present  term)  132  N.  W.  584.  The  act  is  quite  long, 
as  the  complicated  and  delicate  subject  with  which  it 
deals  manifestly  requires,  but  its  general  purport  and 
effect  so  far  as  this  case  is  concerned  may  be  briefly  sum- 
marized: 

"It  creates  an  administrative  board  to  carry  its  pro- 
visions into  effect.  It  divides  all  private  employers  of 
labor  into  two  classes:  (1)  Those  who  elect  to  come 
under  the  law;  and  (2)  those  who  do  not  so  elect.  It 
takes  away  the  defenses  of  assumption  of  risk,  and  neg- 
ligence of  a  coemploye  from  the  second  class  (except 
that  where  there  are  less  than  four  coemployes  the  lat- 
ter defense  is  not  disturbed),  but  leaves  both  defenses 
intact  to  the  first  class.  It  prescribes  the  manner  in 
which  an  employer  may  elect  to  come  under  its  terms, 
and  how  an  employe  may  make  his  election,  and  when 
silence  on  the  part  of  the  employe  will  be  considered  an 
election;  but  it  does  not  in  terms  compel  either  em- 
ployer or  employe  to  submit  to  its  provisions.  It  then 
provides  a  comprehensive  scheme  by  which,  after  both 
parties  have  so  elected,  any  substantial  injury,  whether 
the  result  be  fatal  or  not,  received  by  the  employe  in  the 
course  of  or  incidental  to  his  employment  (except  those 
caused  by  willful  misconduct)  shall  be  compensated  for 
by  the  employer  according  to  certain  definite  rules, 


§  228     WORKMEN'S  COMPENSATION  AND  INSURANCE.      566 

which  rules  are  to  be  administered  by  the  administra- 
tive board  aforesaid  by  means  of  simple  procedure  defi- 
nitely laid  down,  which  gives  to  both  parties  fair  notice 
and  hearing,  and  results  in  findings  and  an  award  which 
may  be  filed  in  the  circuit  court  and  become  a  judgment. 
It  further  provides  that  the  findings  of  fact  shall  be 
conclusive  and  the  award  subject  to  review  only  by 
action  in  the  circuit  court  of  Dane  county,  in  which  it 
can  be  set  aside  only  (1)  if  the  commission  acted  with- 
out or  in  excess  of  its  powers;  (2)  if  the  award  was 
procured  by  fraud;  or  (3)  if  the  award  is  not  supported 
by  the  findings  of  fact.  It  then  provides  that  the  judg- 
ment thus  rendered  shall  be  subject  to  appeal  to  the  Su- 
preme court. 

"For  all  the  essential  purposes  of  this  discussion,  it 
may  truly  be  said  that  this  is  the  law  which  is  before 
us,  and  the  question  is  simply  whether  there  is  any  vital 
part  of  it  which  the  Legislature  may  not  enact  because 
the  Constitution  forbids  it.  It  is  matter  of  common 
knowledge  that  this  law  forms  the  legislative  response 
to  an  emphatic,  if  not  a  peremptory,  public  demand.  It 
was  admitted  by  lawyers,  as  well  as  laymen,  that  the 
personal  injury  action  brought  by  the  employe  against 
his  employer  to  recover  damages  for  injuries  sustained 
by  reason  of  the  negligence  of  the  employer  had  wholly 
failed  to  meet  or  remedy  a  great  economic  and  social 
problem  which  modern  industrialism  has  forced  upon 
us,  namely,  the  problem  of  who  shall  make  pecuniary 
recompense  for  the  toll  of  suffering  and  death  which  that 
industrialism  levies  and  must  continue  to  levy  upon  the 
civilized  world.  This  problem  is  distinctly  a  modern 
problem.  In  the  days  of  manual  labor,  the  small  shop, 
with  few  employes,  and  the  stagecoach,  there  was  no 
such  problem,  or,  if  there  was,  it  was  almost  negligible. 
Accidents  there  were  in  those  days,  and  distressing 
ones ;  but  they  were  relatively  few,  and  the  employe 
who  exercised  any  reasonable  degree  of  care  was  com- 


567  WISCONSIN   ACT.  §  228 

paratively  secure  from  injury.  There  was  no  army  of 
injured  and  dying,  with  constantly  swelling  ranks 
marching  with  halting  step  and  dimming  eyes  to  the 
great  hereafter.  This  is  what  we  have  with  us  now, 
thanks  to  the  wonderful  material  progress  of  our  age, 
and  this  is  what  we  shall  have  with  us  for  many  a  day 
to  come.  Legislate  as  we  may  in  the  line  of  stringent 
requirements  for  safety  devices  or  the  abolition  of  em- 
ployers' common-law  defenses,  the  army  of  the  injured 
will  still  increase,  and  the  price  of  our  manufacturing 
greatness  will  still  have  to  be  paid  in  human  blood  and 
tears.  To  speak  of  the  common-law  personal  injury 
action  as  a  remedy  for  this  problem  is  to  jest  with  ser- 
ious subjects,  to  give  a  stone  to  one  who  asks  for  bread. 
The  terrible  economic  waste,  the  overwhelming  temp- 
tation to  the  commission  of  perjury,  and  the  relatively 
small  proportion  of  the  sums  recovered  which  comes 
to  the  injured  parties  in  such  actions,  condemn  them  as 
wholly  inadequate  to  meet  the  difficulty. 

"In  approaching  the  consideration  of  the  present  law, 
we  must  bear  in  mind  the  well-established  principle  that 
it  must  be  sustained,  unless  it  be  clear  beyond  reason- 
able question  that  it  violates  some  constitutional  limi- 
tation or  prohibition.  That  governments  founded  on 
written  constitutions  which  are  made  difficult  of  amend- 
ment or  change  lose  much  in  flexibility  and  adaptability 
to  changed  conditions  there  can  be  no  doubt.  Indeed 
that  may  be  said  to  be  one  purpose  of  the  written  con- 
stitution. Doubtless  they  gain  enough  in  stability  and 
freedom  from  mere  whimsical  and  sudden  changes  to 
more  than  make  up  for  the  loss  in  flexibility;  but  the 
loss  still  remains,  whether  for  good  or  ill.  A  constitu- 
tion is  a  very  human  document,  and  must  embody  with 
greater  or  less  fidelity  the  spirit  of  the  time  of  its  adop- 
tion. It  will  be  framed  to  meet  the  problems  and  diffi- 
culties which  face  the  men  who  make  it,  and  it  will  gen- 
erally crystallize  with  more  or  less  fidelity  the  political, 


§  228      WORKMEN'S  COMPENSATION  AND  INSURANCE.      568 

social  and  economic  propositions  which  are  considered 
irrefutable,  if  not  actually  inspired,  by  the  philosophers 
and  legislators  of  the  time;  but  the  difficulty  is  that, 
while  the  Constitution  is  fixed  or  very  hard  to  change, 
the  conditions  and  problems  surrounding  the  people, 
as  well  as  their  ideals,  are  constantly  changing.  The 
politics  or  philosophical  aphorism  of  one  generation  is 
doubted  by  the  next,  and  entirely  discarded  by  the 
third.  The  race  moves  forward  constantly,  and  no 
Canute  can  stay  its  progress. 

"Constitutional  commands  and  prohibitions,  either 
distinctly  laid  down  in  express  words  or  necessarily  im- 
plied from  general  words,  must  be  obeyed,  and  implic- 
itly obeyed,  so  long  as  they  remain  unamended  or  un- 
repealed.  Any  other  course  on  the  part  of  either  legis- 
lator or  judge  constitutes  violation  of  his  oath  of  office ; 
but  when  there  is  no  such  express  command  or  prohibi- 
tion, but  only  general  language,  or  a  general  policy 
drawn  from  the  four  corners  of  the  instrument,  what 
shall  be  said  about  this?  By  what  standards  is  this  gen- 
eral language  or  general  policy  to  be  interpreted  and 
applied  to  present  day  people  and  conditions?  When 
an  eighteenth  century  constitution  forms  the  charter  of 
liberty  of  a  twentieth  century  government,  must  its 
general  provisions  be  construed  and  interpreted  by  an 
eighteenth  century  mind  in  the  light  of  eighteenth  cen- 
tury conditions  and  ideals?  Clearly  not.  This  were  to 
command  the  race  to  halt  in  its  progress,  to  stretch  the 
state  upon  a  veritable  bed  of  Procrustes. 

"(1)  Where  there  is  no  express  command  or  prohi- 
bition, but  only  general  language  or  policy  to  be  con- 
sidered, the  conditions  prevailing  at  the  time  of  its 
adoption  must  have  their  due  weight;  but  the  changed 
social,  economic,  and  government  conditions  and  ideals 
of  the  time,  as  well  as  the  problems  which  the  changes 
have  produced,  must  also  logically  enter  into  the  con- 
sideration, and  become  influential  factors  in  the  settle- 


569  WISCONSIN   ACT.  §  228 

ment  of  problems  of  construction  and  interpretation. 
These  general  propositions  are  here  laid  down,  not  be- 
cause they  are  considered  either  new  or  in  serious  con- 
troversy, but  because  they  are  believed  to  be  peculiarly 
applicable  to  a  case  like  the  present,  where  a  law  which 
is  framed  to  meet  new  economic  conditions  and  difficul- 
ties resulting  therefrom  is  attacked  principally  because 
it  is  believed  to  offend  against  constitutional  guaranties 
or  prohibitions  couched  in  general  terms,  or  supposed 
general  policies  drawn  from  the  whole  body  of  the  in- 
strument. 

"Passing  to  the  consideration  of  the  contentions 
made  in  the  present  case,  we  note  in  limine  that  this  is 
not  a  compulsory  law.  No  employer  is  compelled  to  pay 
damages  to  an  employe  without  having  had  his  day  in 
court.  It  is  true  that  the  argument  is  made  that  the  law 
is  practically  coercive;  but  that  argument  is  not  re- 
garded by  us  as  sound,  and  will  be  taken  up  and  treated 
later  in  this  opinion.  We  are  therefore  relieved  from 
all  consideration  of  the  question  whether  a  compulsory 
compensation  act  offends  against  those  clauses  of  the 
state  and  federal  constitutions  which  guarantee  all  citi- 
zens against  the  deprivation  of  property  without  due 
process  of  law.  This  would  be  a  question  of  greater 
difficulty  than  those  which  are  presented  in  the  present 
case.  It  was  decided  in  the  affirmative  by  the  Court  of 
Appeals  of  New  York  (Ives  v.  S.  B.  Ry.  Co.  201  N.  Y. 
271,  94  N.  E.  431),  and  in  the  negative  by  the  Supreme 
Court  of  Washington  (State  ex  rel.  Clausen  [Sept.  27, 
1911]  117  Pac.  1101),  and  we  express  no  opinion  upon  it. 

"The  contention  which  naturally  seems  to  come  first 
in  order  is  the  objection  that  the  whole  first  section, 
abolishing  the  defenses  of  assumption  of  risk  and  negli- 
gence of  a  fellow  servant,  is  void,  because,  as  it  is  said, 
public  policy  does  not  require  their  abrogation  in  any 
but  the  hazardous  trades ;  it  being  admitted  that  in  these 


§  228      WORKMEN'S  COMPENSATION  AND  INSURANCE.      570 

last-named  trades  these  defenses  may  properly  be  abol- 
ished. 

"(2)  The  term  "public  policy"  is  frequently  used 
very  vaguely,  and  evidently  is  so  used  here.  It  is,  how- 
ever, quite  a  definite  thing.  Public  policy  on  a  given 
subject  is  determined  either  by  the  constitution  itself 
or  by  statutes  passed  within  constitutional  limitations. 
In  the  absence  of  such  constitutional  or  statutory  deter- 
mination only  may  the  decisions  of  the  courts  deter- 
mine it.  Hartford  Ins.  Co.  v.  C.,  M.  &  St.  P.  Ry.  Co., 
70  Fed.  201,  17  C.  C.  A.  62,  30  L.  R.  A.  193;  s.  c.,  175  U. 
S.  91,  20  Sup.  Ct.  33,  44  L.  Ed.  84.  This  court  has  said: 
"We  know  of  no  ground  upon  which  a  constitutional 
legislative  enactment  can  be  rightly  spoken  of  as  con- 
trary to  public  policy."  Julien  v.  Model  B.  L.  &  I.  Assn., 
116  Wis.  79,  92  N.  W.  561,  61  L.  R.  A.  668.  And  the 
remark  is  certainly  correct.  When  acting  within  con- 
stitutional limitations,  the  Legislature  settles  and  de- 
clares the  public  policy  of  a  state,  and  not  the  court. 
True,  where  the  Legislature  has  not  spoken  on  a  sub- 
ject, and  the  courts  in  the  course  of  their  duty  have  de- 
clared the  principle  of  common  law  applicable  thereto, 
public  policy  may  be  truly  said  to  be  thus  created;  but 
any  public  policy  thus  created  by  the  courts  may  be  at 
any  time  reversed  or  changed  by  the  Legislature,  pro- 
vided it  act  within  constitutional  lines.  The  people, 
acting  directly  by  means  of  a  referendum,  or  through 
their  representatives  in  constitutional  conventions  or 
legislative  bodies,  are  the  makers  of  public  policy,  and 
it  is  only  when  the  people  have  failed  to  speak  in  these 
methods  that  the  courts  can  be  said  to  have  powrer  to 
make  public  policy  by  decision.  A  constitutional  statute 
can  not  be  contrary  to  public  policy — it  is  public  policy. 

"The  contention  that  a  statute  is  unconstitutional 
because  it  is  against  public  policy  amounts  to  nothing 
more  than  a  contention  that  it  is  unconstitutional;  hence 


571  WISCONSIN    ACT.  §  228 

we  address  ourselves  directly  to  that  question  and  there- 
by gain  something  in  clearness  of  thought. 

"(3)  The  two  defenses  which  the  Legislature  has 
thus  attempted  to  take  away  are  not  intrenched  behind 
any  express  constitutional  provision,  nor  were  they  ori- 
ginally created  by  legislative  action.  They  were  both 
evolved  by  the  courts.  At  a  time  when  industries  of  all 
kinds  were  comparatively  simple  and  free  from  danger, 
when  employes  of  a  common  master  were  few  in  num- 
ber and  generally  acquainted  with  each  other,  and  when 
a  personal  injury  action  was  a  rarity,  it  was  thought 
not  to  be  unreasonable  that*  an  employe  should  assume 
those  simple  risks  which  were  plainly  before  him,  and 
should  not  be  heard  to  complain  if  he  were  injured  by 
the  careless  act  of  a  fellow  workman  by  whose  side  he 
had  continued  to  work  when  he  must  have  well  known 
the  nature  and  habits  of  the  man.  The  precedent  once 
made  was  generally  followed,  until  it  became  buttressed 
by  a  multitude  of  decisions  in  practically  all  of  the  juris- 
dictions whose  jurisprudence  is  founded  upon  the  Eng- 
lish common  law.  But,  as  has  been  pointed  out  earlier 
in  this  opinion,  the  conditions  surrounding  employer 
and  employed  have  vastly  changed  during  the  last  half 
century,  and  now  the  Legislature,  having  become  con- 
vinced that  new  conditions  call  for  a  change  in  rules  of 
liability,  have  declared  that  such  a  change  shall  be  made. 
They  have  changed  the  rule  established  by  the  courts, 
because  they  deem  another  rule  better  fitted  to  deal 
with  the  problems  of  the  time,  or,  in  other  words,  be- 
cause they  deem  it  best  to  establish  a  changed  public 
policy. 

"It  is  frankly  admitted  by  appellant  that  it  is  within 
the  legislative  power  to  make  this  change  with  regard 
to  the  hazardous  trades,  but  not  with  regard  to  what 
are  called  the  nonhazardous  trades.  But  why  not? 
There  are,  of  course,  some  occupations  which  are  excep- 
tionally hazardous,  and  it  may  well  be  that  it  would  be 


§  228      WORKMEN'S  COMPENSATION  AND  INSURANCE.      572 

within  legislative  discretion  to  classify  these  very  haz- 
ardous occupations  and  remove  the  defenses  as  to  them, 
while  retaining  them  as  to  others  less  hazardous.  In- 
deed, that  very  thing  has  been  done  and  has  been  ap- 
proved by  the  courts  in  this  and  many  other  states,  es- 
pecially in  the  case  of  railroads  and  to  some  extent  with 
other  industries.  M.  I.  Co.  v.  Kline,  199  U.  S.  593,  26 
Sup.  Ct.  159,  50  L.  Ed.  322;  Stats.  Wis.  §  1816,  as 
amended  by  chapter  254,  Laws  1907;  Kiley  v.  C.  M.  & 
St.  P.  Ry.  Co.,  142  Wis.  154,  125  N.  W.  464;  Stats.  Wis. 
§§1636j— 1636jj  (chapter  303,  Laws  1905). 

[4]  But  because  there  is  room  for  classification  it 
does  not  follow  that  legislation  without  classification  is 
unconstitutional.  There  are  hazards  in  all  occupations ; 
indeed,  they  follow  every  man  from  the  cradle  to  the 
grave.  What  constitutional  requirement,  either  ex- 
press or  implied,  clothes  these  court-made  defenses  with 
exceptional  sanctity  as  to  the  less  hazardous  industries, 
and  warns  off  from  them  the  sacrilegious  hand  of  the 
Legislature?  We  are  referred  to  none,  and  we  know  of 
none.  It  is  admitted  in  the  Ives  Case,  supra,  that  both 
the  fellow  servant  defense  and  the  contributory  negli- 
gence defense,  being  of  judicial  origin,  may  be  changed 
or  abolished  by  the  Legislature.  See,  also,  Opinions  of 
the  Justices  of  the  Massachusetts  Supreme  Judicial 
Court  on  the  Personal  Injuries  Act  of  1911,  96  N.  E. 
308.  We  see  absolutely  no  ground  for  the  contention 
that  these  defenses  may  be  lawfully  abrogated  as  to  the 
more  hazardous  industries,  but  must  be  forever  held 
sacred  as  to  the  less  hazardous  industries.  There  may 
be  a  less  persuasive  reason  for  the  change  in  the  case 
of  the  latter  class  of  industries,  but  this  does  not  de- 
prive the  Legislature  of  the  power  to  make  it. 

"[5,  6]  But  it  is  said  that  there  is  no  proper  classifi- 
cation here,  and  hence  that  the  law  is  fatally  discrimi- 
nating in  its  character.  The  two  defenses  are  preserved 
intact  to  employers  who  elect  to  come  under  the  law 


573  WISCONSIN  ACT.  §  228 

and  taken  away  from  those  who  do  not  so  elect.     The 
rules  governing  classification  are  familiar  and  are   in 
brief  as  follows:     It  must  be  based  on  substantial  dis- 
tinctions which  make  real  differences;  it  must  be  ger- 
mane to  the  purposes  of  the  law;  it  must  not  be  limited 
to  existing  conditions  only  and  must  apply  equally  to 
each  member  of  the  class.     It  seems  to  us  that  this 
classification  fully  meets  these  requirements;  certainly 
there  will  be  very  real  differences  between  the  situation 
of  the  employer  who  elects  to  come  under  the  law  and 
the  employer  who  does  not.     If  the  consenting  employ- 
er only  employs  workmen  who  also  elect  to  come  under 
the  law,  he  can  never  be  mulcted  in  heavy  damages,  and 
will  know  whenever  an  employe  is  injured  practically 
just  what  must  be  paid  for  the  injury.     Surely  this  is  a 
different  situation  from  the  situation  of  the  man  who  is 
liable  to  be  brought  into  court  by  an  injured  employe 
at  any  time  and  obliged  to  defend  common-law  actions 
upon  heavy  claims  unliquidated  in  their  character,  the 
outcome  of  which  actions  none  can  foretell.     On  the 
other  hand,  if,  as  seems  quite  likely,  the  greater  part 
of   the   consenting   employer's   workmen   consent,   but 
some  do  not,  and  these  latter  are  still  retained  in  the 
employment,  the  same  considerations  will  apply  with 
somewhat  less  force.    On  the  one  hand,  there  is  a  class 
of  consenting  employers  employing  wholly  or  largely 
consenting  workmen,  and  having  definite  and  fixed  obli- 
gations to  their  workmen  in  case  of  injury;  on  the  other 
hand  is  a  class  of  nonconsenting  employers  who  have 
no  such  fixed  obligations  in  case  of  injury  to  their  work- 
men, but  choose  to  meet  every  such  workman  in  court 
and  fight  out  the  question  of  liability.    There  seems  a 
very  robust  difference  between  these  two  classes.     But 
after  all  there  is  another  distinction  which  seems  per- 
haps more  satisfactory.     The  consenting  employer  has 
done  his  share,  and  it  must  be  considered  a  considerable 
share,  in  rendering  successful  the  legislative  attempt  to 


§  228      WORKMEN'S  COMPENSATION  AND  INSURANCE.      574 

meet  and  solve  a  difficult  social  and  economic  problem. 
Even  if  it  be  true  (which,  as  before  stated,  is  not  de- 
cided) that  he  may  not  be  compelled  under  our  Consti- 
tutions, state  and  national,  to  assist  in  the  solution  of 
this  problem,  still  does  not  his  voluntary  act  in  giving 
that  assistance  constitute  a  substantial  distinction,  mak- 
ing a  real  difference  of  situation  between  him  and  the 
employer  who  refuses  his  aid — a  difference  which  justi- 
fies a  difference  in  treatment? 

"It  seems  to  us  that  this  question  must  be  answered 
in  the  affirmative,  and  if  it  be  so  answered  there  can  be 
no  doubt  as  to  the  legitimacy  of  the  classification,  for 
the  reason  that  it  is  quite  apparent  that  the  other  condi- 
tions of  valid  classification  are  fully  satisfied.  There  can 
be  no  doubt  that  the  classification  is  germane  to  the 
purpose  of  the  law,  and  it  is  not  limited  in  its  applica- 
tion to  existing  conditions  only,  and  applies  equally  to 
each  member  of  the  class. 

"The  minor  classification  by  which  the  fellow  serv- 
ant defense  is  preserved  to  all  employers  employing  less 
than  four  employes  in  a  common  employment  is  also  at- 
tacked as  having  no  proper  legal  basis ;  but  it  seems  to 
us  that  the  grounds  of  classification  here  are  more  per- 
suasive even  than  in  the  case  just  discussed.  The  man 
who  is  employed  with  one  or  two  other  men  in  a  given 
employment  in  all  reasonable  probability  knows  their 
characteristics  well,  and  will  probably  be  with  them  a 
great  part^of  the  time.  He  will  have  ample  opportunity 
to  form  a  just  judgment  as  to  the  risk  of  injury  from 
their  negligence  which  he  will  run  if  he  works  with 
them,  and  will  be  enabled  to  shape  his  own  conduct  ac- 
cordingly; but  the  man  who  is  one  of  a  large  number  of 
men,  many  of  whom  he  never  sees,  and  some  of  these 
latter  having  duties  to  perform  in  distant  places  upon 
the  due  performance  of  which  his  own  safety  depends, 
has  no  opportunity  to  acquire  any  accurate  knowledge 
of  the  characteristics  of  many  of  his  fellow  workmen, 


575  WISCONSIN  ACT.  §  228 

and  can  not  intelligently  decide  what  risk  he  runs  at  the 
hands  of  such  distant  and  unknown  employes.  The  dif- 
ference in  situation  is  not  merely  fanciful;  it  is  real.  In 
one  case,  the  employe  knows  or  has  the  means  of  know- 
ing what  to  expect  from  his  colaborers;  in  the  other 
case,  he  has  neither  the  knowledge  nor  the  means  of 
knowledge.  Of  course,  there  will  be  cases  on  the  border 
line,  where  the  difference  in  situation  will  be  very  slight, 
or  perhaps  entirely  nonexistent.  There  will  probably 
be  no  practical  difference  between  the  situation  of  the 
man  who  is  one  of  four  or  five  employes  in  a  given  em- 
ployment and  the  situation  of  the  man  who  is  one  of 
three;  but  this  does  not  militate  against  the  legitimacy 
of  the  classification.  This  is  a  necessary  defect  in  all 
cases  of  classification  based  upon  numbers.  The  ques- 
tion is  not  whether  there  may  be  some  on  one  side  of 
the  line  whose  situation  is  practically  the  same  as  that 
of  some  on  the  other  side,  but  whether  there  "is  a  dis- 
tinction between  the  classes  as  classes,  whether  there 
are  characteristics  which,  to  a  greater  degree,  persist 
through  the  one  class  than  in  the  other  which  justify 
legal  discrimination  between  them."  State  v.  Evans, 
130  Wis.  381,  HON.  W.  241. 

"[7]  Passing  from  these  questions  of  classification, 
we  meet  the  objection  that  the  law,  while  in  its  words 
presenting  to  employer  and  employe  a  free  choice  as  to 
whether  he  will  accept  its  terms  or  not,  is  in  fact  coer- 
cive, so  that  neither  employer  nor  employe  can  be  said 
to  act  voluntarily  in  accepting  it.  As  to  the  employer, 
the  argument  is  that  the  abolition  of  the  two  defenses 
is  a  club  which  forces  him  to  accept;  and  as  to  the  em- 
ploye, the  argument  is  that  if  his  employer  accepts  the 
law  the  employe  will  feel  compelled  to  accept  also, 
through  fear  of  discharge  if  he  do  not  accept. 

"Both  of  these  arguments  are  based  upon  conjecture. 
Laws  can  not  be  set  aside  upon  mere  speculation  or  con- 
jecture. The  court  must  be  able  to  say  with  certainty 


§  228     WORKMEN'S  COMPENSATION  AND  INSURANCE.      576 

that  an  unlawful  result  will  follow.  We  do  not  see  how 
any  such  thing  can  be  said  here.  No  one  can  say  with 
certainty  what  results  will  follow  in  the  practical  work- 
ings of  the  law.  It  may  well  be  that  many  manufactur- 
ers, especially  those  employing  small  numbers  of  em- 
ployes and  in  the  less  dangerous  trades,  will  deliberately 
conclude  that  it  will  be  better  business  policy  to  exer- 
cise greater  care  in  guarding  their  employes  from  pos- 
sible danger  and  greater  discrimination  in  the  employ- 
ment of  careful  men,  and  reject  the  law  entirely,  running 
the  risk  of  being  able  to  prevent  all  or  nearly  all  acci- 
dents. It  seems  extremely  probable  that  the  great  bulk 
of  workmen,  especially  of  the  unskilled  classes,  will  be 
glad  to  come  under  the  act  and  thus  secure  a  certain 
compensation  in  case  of  injury,  in  place  of  that  very  un- 
certain and  expensive  thing,  namely,  the  final  result  of  a 
lawsuit;  but  whether  this  be  so  or  not,  it  may  be  con- 
sidered as  reasonably  certain  that  very  many  will  elect 
to  come  under  the  act  voluntarily  and  freely,  and  that 
those  who  do  not  will  probably  come  from  the  ranks  of 
skilled  labor,  who  will  deem  the  rates  of  compensation 
under  the  law  as  entirely  inadequate  or  will  be  careful 
workmen  in  the  less  dangerous  trades,  who  will  see  no 
gain  in  bartering  their  common-law  rights  for  the  re- 
stricted remedies  furnished  by  the  statute.  It  can  not 
be  said  with  any  certainty  that  such  men  will  be  dis- 
charged for  their  failure  to  voluntarily  come  under  the 
law.  The  probability  would  seem  rather  to  be  that  they 
would  be  of  a  class  which  the  employer  would  wish  to 
keep  in  his  employ,  notwithstanding  their  attitude  to- 
ward the  law.  These  matters  are,  however,  purely 
speculative  and  conjectural.  None  can  say  what  the 
practical  operation  of  the  law  will  be.  It  is  enough  for 
our  present  purpose  that  no  one  can  say  with  certainty 
that  it  will  operate  to  coerce  either  employer  or  em- 
ploye. 

"[8]     We  thus  reach  the  conclusion  that  there  are 


577  WISCONSIN    ACT.  §  228 

no  valid  constitutional  objections  to  the  first  section  of 
the  law  in  question,  and  this  conclusion  obviates  the 
necessity  of  any  consideration  of  the  provisions  of  sec- 
tion 2394 — 32,  which  aims  to  preserve  the  balance  of 
the  law  intact  in  case  the  whole  or  some  part  of  section 
1  should  be  considered  invalid.  We  may  say  in  passing 
that  we  know  of  no  good  reason  why  the  Legislature 
may  not  declare  its  intention  that  one  part  or  section  of 
a  law  is  not  a  compensation  for  and  that  it  may  be  sep- 
arated from  the  balance  of  the  act  for  the  very  purpose 
of  saving  such  balance  from  being  invalidated  in  case 
the  first-named  part  or  section  be  held  unconstitutional. 
We  think  it  would  take  a  very  extreme  case  of  palpable 
absurdity  or  falsity  in  such  a  provision  to  justify  any 
•court  in  declaring  such  a  declaration  of  legislative  in- 
tent ineffective,  if  indeed  a  court  could  make  such  a 
•declaration  at  all. 

"[9]  The  next  important  contention  is  that  the  law 
is  unconstitutional  because  it  vests  judicial  power  in  a 
body  which  is  not  a  court  and  is  not  composed  of  men 
elected  by  the  people,  in  violation  of  those  clauses  of 
the  state  Constitution  which  vest  the  judicial  power  in 
certain  courts  and  provide  for  the  election  of  judges 
by  the  people,  as  well  as  in  violation  of  the  constitution- 
al guaranties  of  due  process  of  law.  It  was  suggested  at 
the  argument  that  the  Industrial  Commission  might 
perhaps  be  held  to  be  a  court  of  conciliation,  as  author- 
ized to  be  created  by  section  16  of  article  7  of  the  state 
Constitution;  but  we  do  not  find  it  necessary  to  con- 
sider or  decide  this  contention.  We  do  not  consider 
the  Industrial  Commission  a  court,  nor  do  we  construe 
the  act  as  vesting  in  the  commission  judicial  powers 
within  the  meaning  of  the  Constitution.  It  is  an  ad- 
ministrative body  or  arm  of  the  government,  which  in 
the  course  of  its  administration  of  a  law  is  empowered 
to  ascertain  some  questions  of  fact  and  apply  the  exist- 
ing law  thereto,  and  in  so  doing  acts  quasi  judicially; 

37— BOTD  W  C 


§  228     WORKMEN'S  COMPENSATION  AND  INSURANCE.      578 

but  it  is  not  thereby  vested  with  judicial  power  in  the 
constitutional  sense. 

"There  are  many  such  administrative  bodies  or  com- 
missions, and  with  the  increasing  complexity  of  modern 
government  they  seem  likely  to  increase  rather  than 
diminish.  Examples  may  be  easily  thought  of.  Town 
boards,  boards  of  health,  boards  of  review,  boards  of 
equalization,  railroad  rate  commissions,  and  public  util- 
ity commissions  all  come  within  this  class.  They  per- 
form very  important  duties  in  our  scheme  of  govern- 
ment, but  they  are  not  Legislatures  or  courts.  The 
legislative  branch  of  the  government  by  statute  deter- 
mines the  rights,  duties,  and  liabilities  of  persons  and 
corporations  under  certain  conditions  of  fact,  and  vary- 
ing as  the  facts  and  conditions  change.  Manifestly  the 
Legislature  can  not  remain  in  session  and  pass  a  new 
act  upon  every  change  of  conditions;  but  it  may  and 
.does  commit  to  an  administrative  board  the  duty  of  as- 
certaining when  the  facts  exist  which  call  into  activity 
certain  provisions  of  the  law,  and  when  conditions  have 
changed  so  as  to  call  into  activity  other  provisions. 
The  law  is  made  by  the  Legislature;  the  facts 
upon  which  its  operation  is  dependent  are  ascer- 
tained by  the  administrative  board.  While  acting 
within  the  scope  of  its  duty,  or  its  jurisdiction,  as  it  is 
sometimes  called,  such  a  board  may  lawfully  be  endowed 
with  very  broad  powers,  and  its  conclusions  may  be 
given  great  dignity  and  force,  so  that  courts  may  not 
reverse  them  unless  the  proof  be  clear  and  satisfactory 
that  they  are  wrong.  M.,  St.  P.  &  S.  S.  M.  R.  Co.  v.  R. 
R.  Com.,136  Wis.  146,  116  N.  W.  905,  17  L.  R.  A.  (N. 
S.)  821.  Not  only  this,  but  many  such  boards  are 
created  whose  decisions  of  fact  honestly  made  within 
their  jurisdiction  are  not  subject  to  review  in  any  pro- 
ceeding. State  ex  rel.  v.  Chittenden,  112  Wis.  569,  88 
N.  W.  587;  State  ex  rel.  v.  Wharton,  117  Wis.  558,  94 
N.  W.  359;  State  ex  rel.  Cook  v.  Houser,  122  Wis. 


579  WISCONSIN  ACT.  §  228 

534-561,  100  N.  W.  964;  State  ex  rel.  v.  Trustees,  138 
Wis.  133,  119  N.  W.  806,  20  L.  R.  A.  (N.  S.)  1175.  It  is 
important  to  notice  the  limitation  contained  in  the  last 
sentence.  The  decision  of  such  a  board  may  be  made 
conclusive  when  the  board  is  acting  within  its  jurisdic- 
tion, not  otherwise.  Hence  the  question  of  its  jurisdic- 
tion is  one  always  open  to  the  courts  for  review.  It 
can  not  itself  conclusively  settle  that  question,  and  thus 
endow  itself  with  power.  If  no  appeal  from  its  conclu- 
sions be  provided,  the  question  whether  it  has  acted 
within  or  exceeded  its  jurisdiction  is  always  open  to  the 
examination  and  decision  of  the  proper  court  by  writ  of 
certiorari.  The  instances  where  the  question  of  juris- 
diction of  such  bodies  has  been  examined  and  decided 
in  certiorari  actions  are  so  numerous  that  it  seems  un- 
necessary to  cite  them.  In  such  cases  it  is  considered 
that  clear  violations  of  law  in  reaching  the  result  reached 
by  the  board,  such  as  acting  without  evidence  when 
evidence  is  required,  or  making  a  decision  contrary  to 
all  the  evidence,  constitute  jurisdictional  error,  and  will 
justify  reversal  of  the  board's  action,  as  well  as  the  fail- 
ure to  take  the  proper  steps  to  acquire  jurisdiction  at 
the  beginning  of  the  proceeding.  State  ex  rel.  Augusta 
v.  Losby,  115  Wis.  57,  90  N.  W.  188. 

"Thus,  in  the  case  before  us,  the  jurisdiction  of  the 
Industrial  Commission  to  entertain  any  claim  for  com- 
pensation under  the  act  rests  upon  two  facts  which  must 
exist,  viz.:  (1)  That  both  employer  and  employe  have 
elected  to  come  under  the  act;  and  (2)  that  the  injury 
was  received  in  service  growing  out  of  or  incidental  to 
the  employment  as  the  result  of  accident,  and  not  of 
wilful  misconduct. 

"[10]  The  Industrial  Commission  must,  of  course, 
decide  these  questions  in  any  case  where  they  are  raised; 
but  it  cannot  decide  them  conclusively,  for  they  are  jur- 
isdictional questions  on  which  its  right  to  act  at  all  de- 
pends. They  must  be  open  to  review  in  some  court  of 


§  228      WORKMEN'S  COMPENSATION  AND  INSURANCE.      580 

competent  jurisdiction;  otherwise,  the  parties  would  be 
denied  due  process  of  law.  The  tribunal  only  has  au- 
thority over  those  who  have  voluntarily  elected  to  give 
it  authority,  and  if  it  can  decide  finally  that  a  man  has 
given  consent,  when  he  has  not,  it  assumes  the  functions 
of  a  court.  If  the  act  before  us  took  away  from  the 
courts  the  power  to  consider  these  jurisdictional  ques- 
tions, either  expressly  or  by  necessary  implication,  the 
contention  that  judicial  power  had  been  vested  in  the 
commission,  contrary  to  the  command  of  the  Constitu- 
tion, would  be  of  greater  force;  but  we  think  that  the 
act  does  not  do  this,  or  attempt  to  do  it.  True,  it  says 
that  the  findings  of  fact  made  by  the  commission  shall, 
in  the  absence  of  fraud  be  conclusive ;  but  it  provides 
for  an  action  in  the  circuit  court  of  Dane  county,  in 
which  the  board's  award  may  be  set  aside  upon  either 
of  three  grounds,  viz.:  (1)  That  the  board  acted  with- 
out or  in  excess  of  its  powers;  (2)  that  the  award  was 
procured  by  fraud;  and  (3)  that  the  findings  of  fact  do 
not  support  the  award. 

"[11]  We  regard  the  expression  "without  or  in  ex- 
cess of  its  powers"  as  substantially  the  equivalent,  or  at 
least  as  inclusive  of  the  expression  "without  or  in  excess 
of  its  jurisdiction,"  as  those  words  are  used  in  certiorari 
actions  to  review  the  decisions  of  administrative  officers 
and  bodies.  We  know  of  no  other  construction  that  can 
be  logically  given  to  them,  and  it  seems  to  us  that  they 
were  designedly  and  advisedly  inserted  by  the  framers 
of  the  bill  to  meet  the  very  objection  which  is  now  made. 
With  this  construction,  it  is  certain  that  the  constitu- 
tional powers  of  the  courts  have  not  been  invaded,  and 
that  no  man  without  his  consent  can  be  brought  under 
the  law  or  is  deprived  of  his  right  to  "due  process  of 
law"  thereby. 

"There  are  some  further  objections  which  will  be 
more  briefly  considered.  It  is  said  that,  even  if  it  be  held 
that  the  act  is  not  coercive,  still  when  employer  and  em- 


581  WISCONSIN   ACT.  §  228 

ploye  consent  to  come  under  the  law  they  in  effect  whol- 
ly stipulate  away  their  rights  to  resort  to  the  courts, 
and  that  such  agreements  are  void,  citing  Fox  v.  M.  F. 
A.  Assn.,  96  Wis.  390,  71  N.  W.  363.    The  case  cited, 
however,  recognizes  the  companion  principle  that  agree- 
ments to  arbitrate  special  matters,  such,  for  instance,  as 
the  amount  of  the  loss  under  an  insurance  policy  (or,  as 
in  the  present  case,  the  extent  of  an  injury  or  disability, 
and  the  like),  which  do  not  go  to  the  whole  groundwork 
of  the  controversy,  are  universally  sustained.     As  we 
have  seen,  these  special  matters  are  the  only  matters 
which  the  board  may  conclusively  decide  under  this  law. 
If   there   be   a   controversy   as   to   fundamental    rights, 
namely,  whether  the  parties  have  consented,  or  as  to 
whether  the  injuries  resulted  from  wilful  misconduct, 
these  issues  are  still  open  to  the  court  upon  the  appeal. 
"In  considering  the  question  as  to  how  far  consent 
may  go  in  matters  of  this  kind,  a  case  not  cited  in  the 
briefs  or  mentioned  in  the  oral  argument  should,  we 
think,  be  referred  to  here,  viz.,  the  case  of  Van  Slyke  v. 
Inrnrance  Co.,  39  Wis.  390,  20  Am.  Rep.  50.     In  this 
case  it  appeared  that  the  Legislature  had  passed  a  law 
providing  that  in  case  of  the  filing  of  an  affidavit  of 
prejudice  against  a  circuit  judge  the  parties  might,  if 
they  chose,  stipulate  that  a  member  of  the  bar  should 
act  as  judge  and  try  the  case,  with  all  the  powers  of  the 
regularly  elected  judge  of  the  court.     Acting  on  this 
law,  the  parties  in  the  case  agreed  that  Mr.  John  J. 
Cole  should  try  the  case,  and  he  did  so,  rendered  judg- 
ment for  the  plaintiff,  and  the  defendant  appealed.  The 
court  held    (Chief  Justice   Ryan  writing  the   opinion) 
that  the  Constitution  having  vested  all  the  judicial  pow- 
er of  the  state  in  the  courts,  and  provided  for  the  elec- 
tion of  judges  for  such  courts,  the  Legislature  could 
confer  no  judicial  power  on  other  officers  or  persons, 
nor  authorize  the  parties  to  an  action  to  do  so;  hence 
there  was  no  trial  before  a  court,  and  no  judgment.  The 


§  228      WORKMEN'S  COMPENSATION  AND  INSURANCE.      582 

question  as  to  whether  the  defeated  party  might  not  be 
prevented  from  raising  any  objection  by  his  voluntary 
waiver  was  not  considered  or  mentioned;  but  in  any 
event  the  case  has  no  bearing  here,  and  is  only  men- 
tioned in  order  to  show  that  it  has  not  been  overlooked. 
It  only  decides  that  neither  the  Legislature  nor  private 
parties  can  make  a  judge  out  of  a  private  citizen,  and 
endow  him  with  the  power  to  hold  a  court,  contrary  to 
the  direct  command  of  the  Constitution.  As  the  com- 
mission in  the  present  case  is  not  a  court,  but  simply  an 
administrative  board,  the  doctrine  laid  down  in  the  case 
cited  has  no  application. 

"[12]  Again,  it  is  said  that  the  act  compels  munici- 
palities to  levy  taxes  for  other  than  public  purposes, 
since  all  workmen  injured  in  the  employ  of  the  public 
are  to  be  compensated,  and  thus  taxpayers  will  be  de- 
prived of  their  property  without  due  process  of  law. 
We  have  not  been  quite  able  to  appreciate  the  force  of 
this  point,  and  we  find  no  argument  upon  it  in  the  brief. 
We  shall  only  say  that  the  manner  in  which  the  state  or 
the  public  shall  treat  its  workmen  is  peculiarly  a  matter 
for  the  Legislature  to  determine.  No  one  is  compelled 
to  work  for  the  public,  and,  if  he  does,  he  takes  his  sit- 
uation on  the  terms  which  the  public  gives.  We  know 
of  no  reason  why  the  public,  acting  by  its  lawmaking 
power,  may  not  provide  that  its  employes  shall  have  as 
part  of  their  compensation  certain  indemnities  in  case 
of  accidental  injury  in  the  public  service.  When  a  law 
does  so  provide,  the  raising  of  the  funds  to  discharge 
those  indemnities  becomes  plainly  a  proper  public  pur- 
pose. 

"[13]  Objection  is  made  to  those  clauses  of  section 
2394 — 16  which  provide  for  the  giving  of  notice  of  claim 
by  mail,  and  allow  testimony  to  be  taken  without  notice 
to  either  party,  and  the  claim  is  made  that  this  is  not 
"due  process  of  law."  Were  the  commission  a  court, 
these  objections  would  probably  deserve  serious  consid- 


583  WISCONSIN    ACT.  §  228 

eration,  especially  the  latter  one.  But,  as  we  have  seen, 
the  commission  is  an  administrative  board  merely.  It  is 
common  knowledge  that  such  boards  are  frequently 
given  power  to  investigate  and  determine  facts  without 
notice  to  the  parties  of  each  successive  step  in  the  pro- 
ceedings. The  proceedings  before  such  boards  are  not 
expected  to  be  as  formal  and  cumbrous  as  the  proceed- 
ings of  courts ;  indeed,  the  greater  flexibility  which  such 
bodies  must  possess  if  they  are  to  discharge  their  duties 
seems  to  demand  greater  freedom  of  action.  If  notice, 
either  actual  or  constructive,  of  the  commencement  of 
the  proceedings  before  such  a  body  be  required  to  be 
given  to  the  parties  interested,  and  they  be  given  full 
and  free  opportunity  to  be  heard  and  present  evidence, 
it  is  generally  held  sufficient,  even  though  notice  of  in- 
termediate steps  in  the  proceeding  be  not  required  or 
given.  Schintgen  v.  La  Crosse,  117  Wis.  158,  94  N.  W. 
84.  In  case  of  a  board  like  the  present,  which  only  acts 
on  the  rights  of  parties  who  have  consented  that  it  may 
so  act,  the  reason  of  the  rule  is  far  stronger. 

"[14]  Some  contention  is  made  in  the  brief  that 
minors  can  not  be  treated  in  the  same  manner  as  adults, 
and  that  the  provisions  of  the  law  which  declares  that  a 
minor  who  is  legally  entitled  to  work  shall  have  the 
same  power  of  contracting  for  service  as  an  adult  is  ob- 
jectionable, because  it  allows  the  employer  to  decide 
whether  the  law  shall  treat  his  minor  employes  as  adults. 
The  objection  seems  to  us  fanciful  and  elusive.  There 
is  no  claim  that  the  Legislature  may  not  endow  minors 
with  the  right  to  make  contracts  otherwise  lawful,  and, 
if  this  be  so,  it  seems  to  us  to  be  the  end  of  the  dis- 
cussion. After  the  minor  is  so  endowed,  he  becomes 
for  the  purposes  of  the  act  an  adult,  or  at  least  on  the 
same  plane.  No  adult  employe  of  a  private  employer 
can  elect  to  come  under  the  act  unless  his  employer  has 
first  elected  to  do  so.  So  the  employer  has  the  power 
to  decide  whether  any  of  his  employes,  infant  or  adult, 


§  228     WORKMEN'S  COMPENSATION  AND  INSURANCE.      584 

shall  have  the  privileges  of  the  act  if  they  continue  to 
work  for  him.  This  is  practically  all  there  is  of  the  mat- 
ter, and  we  see  no  substantial  distinction  between  the 
effect  of  the  law  upon  the  adult  and  its  effect  upon  the 
minor. 

"The  foregoing  considerations  are  believed  to  fully 
meet  and  dispose  of  all  the  objections  made  to  the  law 
which  could  reasonably  be  claimed  to  be  fatal  to  the  en- 
tire law  if  sustained.  There  are  many  objections  made 
to  single  sections  or  clauses  of  the  law,  which  we  do 
not  find  it  necessary  or  advisable  to  treat  at  this  time. 
Even  should  some  or  all  of  them  be  sustained,  it  is  our 
judgment  that  the  sections  or  clauses  so  questioned 
could  not  be  said  to  be  so  far  compensations  for  or  in- 
ducements to  the  balance  of  the  law  that  the  entire  law 
must  fall.  In  our  judgment  it  is  better  to  reserve  these 
questions  for  consideration  when  an  actual  case  arises 
which  calls  for  the  decision  of  the  court  upon  them.  It 
is  well-nigh  impossible  for  the  human  mind  to  call  up 
and  contemplate  in  advance  all  the  considerations  which 
ought  to  be  considered  in  passing  upon  the  validity  of 
the  various  incidental  clauses  of  a  new  and  complicated 
law.  The  concrete  case  and  its  actual  circumstances 
and  effects  are  apt  to  throw  much  light  upon  the  ques- 
tion and  suggest  considerations  wholly  unthought  of 
when  viewing  the  matter  abstractly  in  advance  of  any 
actual  experience. 

"Among  these  contentions,  which  we  now  pass  with- 
out decision,  perhaps  the  most  important  is  the  con- 
tention that  so  much  of  section  2394 — 16  as  provides 
that  the  board  or  any  member  thereof,  or  any  examiner 
appointed  thereby,  shall  have  power  to  issue  subpoenas, 
obedience  to  which  shall  be  enforced  by  contempt  pro- 
ceedings in  the  circuit  court.  This  seems  to  present  a 
serious  question,  worthy  of  careful  examination,  and  we 
intimate  no  opinion  upon  it  now. 

"Other  minor  contentions,  which  we  do  not  consider 


WISCONSIN   ACT.  §  228 

it  necessary  or  advisable  to  pass  upon  now,  are  to  the 
effect  that  the  clauses  are  void  which  empower  the  com- 
mission (1)  to  declare  and  enforce  penalties  against  the 
employer  for  failure  to  perform  certain  orders  of  the 
board  made  pending  hearing  (section  2394 — 17) ;  (2) 
to  set  aside  or  modify  contracts  of  settlement  previously 
made  by  the  parties  (section  2394 — 15);  and  (3)  to  re- 
gulate the  amount  of  contingent  attorney's  fees  and  per- 
mit one  claimant  to  make  a  contract  which  it  may  re- 
fuse to  allow  another  to  make  (section  2394 — 22). 

"[15]  Before  closing,  we  shall  briefly  refer  to  an- 
other question  which  was  not  much  discussed  on  the 
argument,  namely,  the  question  whether  the  law  ap- 
plies or  was  intended  to  apply  to  persons  who,  like  the 
plaintiffs,  are  employed  under  contracts  of  service  made 
prior  to  the  passage  of  the  law,  and  which  do  not  ex- 
pire until  some  definite  date  in  the  future,  and,  if  so, 
whether  the  law  can  apply  to  them  without  impairing 
the  obligations  of  their  contracts,  and  thus  violating  the 
Constitution.  As  to  the  first  branch  of  this  question,  we 
think  that  the  language  of  the  act  leaves  no  doubt  as  to 
the  intention  of  the  Legislature.  The  entire  act  by  ex- 
press terms  was  to  become  effective  September  1,  1911. 
Its  provisions  are  broad,  and  without  express  exception, 
read  according  to  their  grammatical  meaning,  they  in- 
clude all  employers  and  employes  who  occupy  those  re- 
lations at  the  time  the  law  becomes  effective.  If  there 
was  an  intention  to  exclude  any  from  its  terms,  that  in- 
tention has  been  carefully  concealed.  We  conclude  that 
it  was  intended  to  include  all  employers  and  employes, 
whatever  the  term  of  service.  The  question  whether 
the  act  as  so  construed  affects  an  existing  contract  of 
service  expiring  at  some  distant  period  in  the  future  is 
easily  answered  in  the  negative,  as  it  seems  to  us.  Cer- 
tainly the  law  does  not  affect  the  service  to  be  rendered, 
or  the  wages  to  be  paid  in  any  way.  Neither  the  obli- 
gation of  the  workman  to  faithfully  do  his  work,  nor 


§  228     WORKMEN'S  COMPENSATION  AND  INSURANCE.      586 

the  obligation  of  the  employer  to  faithfully  pay  the 
stipulated  wage,  nor  the  remedy  in  case  of  breach  by 
either  party,  is  in  any  way  affected.  What,  then,  is  af- 
fected? Plainly  no  provision  of  the  contract;  but,  if 
the  employer  elects  to  come  under  the  law,  the  employe 
must  choose  whether  he  will  come  under  it  or  not,  and  if 
he  does  not  wish  to  come  under  it  he  may  run  the  risk 
of  being  discharged,  or  if  he  wishes  to  retain  his  employ- 
ment he  may  feel  compelled  to  elect  to  come  under  the 
law,  and  thus  lose  his  right  to  bring  an  action  at  law  in 
case  of  a  personal  injury  sustained  in  the  employment. 
"[16]  But  all  this  does  not  in  any  way  affect  the  con- 
tract of  employment.  That  remains  absolutely  unim- 
paired in  all  its  terms.  The  right  to  bring  an  action  in 
the  future  in  case  of  a  possible  tort  not  yet  committed 
is  no  part  of  the  contract  of  employment.  That  right 
arises  out  of  the  relation  of  employer  and  employe,  and 
is  subject  to  change  by  the  lawmaking  power  at  any 
time.  The  employer  does  not  contract  that  it  shall  re- 
main intact.  There  is  no  vested  right  in  a  mere  remedy 
for  a  hpothetical  wrong.  At  most  the  law  can  not  be 
said  to  do  more  than  change  the  remedy  for  a  tort 
which  is  yet  to  happen,  and  may  never  happen.  The 
Legislature  may  change  the  remedies  for  torts  yet  to 
be  committed  at  any  time,  and  such  changes  can  not  be 
said  to  make  any  change  in  mere  contracts  of  service 
existing  between  the  parties.  This  seems  very  patent. 
The  Legislature  has  at  many  times  within  the  last  two 
decades  passed  laws  very  materially  changing  the  lia- 
bilities of  employers  to  employes  for  injuries  resulting 
from  the  negligent  acts  of  the  employer:  e.  g.,  the  laws 
requiring  the  protection  of  machinery,  abolishing  as- 
sumption of  risk  in  such  cases,  abolishing  the  coemploye 
rule  as  to  railway  companies,  and  changing  the  rules 
as  to  contributory  negligence.  In  no  case  has  the 
claim  ever  been  made  that  these  laws  in  any  way 
affected  or  impaired  existing  contracts  of  service  for 


587  WISCONSIN    ACT.  §  228 

terms  expiring  in  the  future  although  many  cases  must 
doubtless  have  occurred  where  those  laws  were  applied 
to  parties  who  were  under  such  contracts. 

"We  have  now  discussed  all  of  the  contentions  made 
against  the  law  which  we  deem  entitled  to  detailed  treat- 
ment, and  we  find  no  serious  difficulty  in  sustaining  its 
fundamental  and  essential  provisions.  As  said  in  the 
beginning  of  this  opinion,  this  law  forms  the  answer  of 
the  Legislature  to  a  very  widespread  demand.  It  is  a 
legislative  attempt  to  reach  within  constitutional  lines 
some  fair  solution  of  a  serious  problem  which  other  na- 
tions, not  restricted  by  written  constitutional  inhibi- 
tions,' have  solved  or  partially  solved  years  ago.  Doubt- 
less the  law  will  need  and  will  receive  changes  and 
amendments  as  time  shall  test  its  provisions  and  demon- 
strate its  weak  points.  It  would  be  unreasonable  to 
expect  that  a  law  covering  so  important  a  subject  along 
lines  not  before  attempted  should  be  perfect,  or  very 
near  perfect,  upon  its  first  enactment.  If  experience 
shall  demonstrate  that  it  is  practicable  and  workable, 
and  operates  either  wholly  or  in  great  measure  to  put 
an  end  to  that  great  mass  of  personal  injury  litigation 
between  employer  and  employe,  with  its  tremendous 
waste  of  money  and  its  unsatisfactory  results,  which 
now  burdens  the  courts,  the  long  and  painstaking  labors 
of  those  legislators  and  citizens  who  collaborated  in 
framing  it  will  be  fittingly  rewarded  by  a  result  so 
greatly  to  be  desired.  That  result  will  mean  a  distinct 
improvement  in  our  social  and  economic  conditions. 

"The  effect  of  our  conclusions  upon  the  result  in  the 
present  case  is  yet  to  be  considered.  The  complaint  was 
sustained,  and  the  injunction  granted,  on  the  ground 
apparently  that,  the  law  being  valid,  the  plaintiffs  would 
be  greatly  injured  if  their  employer  elected  to  become 
bound  by  it,  because  they  would  be  obliged  either  to 
break  their  existing  contracts  or  lose  their  common-law 
remedies  for  their  employer's  torts.  Granting  all  that 


§  228     WORKMEN'S  COMPENSATION  AND  INSURANCE.      588 

plaintiffs  claim  as  to  the  necessary  results  of  their  em- 
ployer's election,  it  is  very  certain  that  no  irreparable 
injury  results  to  them.  If  their  employer  breaks  his 
contract  of  employment  because  they  decline  to  accept 
the  new  law,  they  have  adequate  legal  remedies  for  the 
recovery  of  damages.  If,  on  the  other  hand,  they  elect 
to  come  under  the  law  themselves,  they  lose  no  vested 
or  contract  right,  and  are  not  damaged  in  the  eyes  of 
the  law  by  the  change  in  their  remedies  for  future  torts. 
In  either  event  there  is  no  cause  of  action  in  equity,  and 
no  ground  for  an  injunction.  The  complaint  should 
have  been  dismissed  on  the  pleadings. 

"Judgment  reversed,  and  action  remanded,  with  di- 
rections to  dismiss  the  complaint. 

"Mr.  Justice  Barnes  in  his  concurring  opinion  said: 
I  concur  in  the  opinion  of  the  Chief  Justice,  except  in 
so  far  as  it  is  said  in  effect  that  our  Constitutions  may 
mean  one  thing  today  and  something  different  tomor- 
row, depending  on  whether  conditions  and  ideals  have 
in  the  meantime  undergone  a  change.  I  regard  our 
Constitutions  as  immutable,  except  when  changed  in  the 
manner  therein  prescribed.  Judges,  in  interpreting  our 
fundamental  laws,  may  at  one  time  reach  conclusions 
different  from  those  which  would  be  reached  at  another 
time.  This  does  not  argue  that  the  constitutional  pro- 
vision under  consideration  has  undergone  any  change, 
but  demonstrates  that  judges,  being  finite  beings,  made 
a  mistake  at  one  time  or  the  other.  No  act  of  the  Legis- 
lature should  be  declared  unconstitutional  unless  it  is 
clearly  so.  This  is  elementary.  By  hewing  closely  to 
this  line,  there  is  little  danger  of  the  courts  committing 
any  serious  blunders  in  interpreting  our  organic  laws. 
If  a  legislative  act,  measured  by  this  standard,  trenches 
on  the  Constitution,  it  should  be  held  void,  regardless  of 
whether  or  not  the  provision  violated  is  out  of  harmony 
with  twentieth  century  conditions  and  ideals.  To  hold 
otherwise  is  to  say  that  the  courts  may  change  our 


WISCONSIN    ACT.  §  228 

fundamental  laws.  This  would  be  a  clear  usurpation  of 
power,  never  vested  nor  intended  to  be  vested  in  the 
courts,  and  one  which  was  reserved  to  the  people  them- 
selves. I  am  a  firm  believer  in  constitutional  govern- 
ment. I  do  not  share  the  belief  that  our  Constitutions 
have  become  archaic,  or  that  they  have  outlived  their 
usefulness.  If  the  opinion  of  the  court  is  intended  to 
mean  that  it  is  a  doubtful  question  whether  our  Consti- 
tutions should  be  preserved  or  thrown  in  the  "scrap 
heap,"  I  do  not  agree  with  it. 

Said  Mr.  Justice  Marshall  in  concurrence:  The  re- 
sult, itself,  meets  with  my  unqualified  approval.  Some 
language  in  the  court's  opinion,  however,  respecting  the 
Constitution,  I  fear  will  be  construed  in  a  different  way 
than  the  writer  thereof,  or  any  member  of  the  court,  in- 
tended or  would  sanction,  tending  to  impair  the  lofty 
character  of  the  fundamental  law  as  significantly  main- 
tained by  this  court.  I  am  not  alone  in  that.  Other 
language  appears  which  does  not  express  my  personal 
views.  True,  none  of  such  is  matter  of  decision  or  even 
judicial  dicta,  but,  if  left  unchallenged,  it  is  liable  to  mis- 
leadingly  indicate  a  trend  of  judicial  thought  here  which, 
I  am  safe  in  saying,  does  not  exist.  I  choose  to  avoid 
responsibility  therefor.  It,  seemingly,  is  my  duty  to  do 
so.  In  discharging  that  duty  I  wish  not  to  take  from 
the  dignity  of  the  court's  able  opinion  on  the  vital  ques- 
tions presented  for  solution.  I  do  not  understand  they 
involved  any  new  constitutional,  or  any,  question  of 
difficulty,  giving  rise,  under  any  circumstances,  to  desire 
a  broader  fundamental  spirit  than  has  been  long  firmly 
entrenched  in  the  jurisprudence  of  this  country. 

"The  law  approved  is  a  very  mild  piece  of  legislation. 
While  I  would  not  suggest  it  is  too  moderate  for  now — 
for  that  is  not  within  my  province — yet  I  would  not  indi- 
cate that  the  Legislature  responded  as  fully  as  it  might 
to  the  need  for  a  system  as  directly  as  practicable,  laying 
the  personal  injury  burdens  of  production  upon  the 


§  228     WORKMEN'S  COMPENSATION  AND  INSURANCE.      590 

things  produced  where  they  belong,  as  should  have  been 
efficiently  recognized  long  ago,  and  would  have  been 
had  the  lawmaking  power  appreciated  that  it  is  its  prov- 
ince, not  that  of  courts,  to  cure  infirmity  in  the  law.  If 
criticisms,  unjustly  and  freely  directed  toward  the  latter 
and  the  human  instrumentalities  thereof,  merely  be- 
cause of  their  fidelity  to  duty  to  maintain  the  laws  as 
given,  had  been  turned  upon  the  former  for  failure  to 
better  conserve  human  happiness  in  the  industrial  field 
in  the  light  of  twentieth  century  conditions,  untold 
suffering  might  have  been  prevented,  which  only  the 
people's  representatives  could  prevent.  Tardy  recogni- 
tion of  such  duty  casts  no  reflection  upon  legislative 
actors  of  today.  Who  can  say  but  that  they  would  have 
had  the  same  ideals  as  now,  and  effected  the  same  re- 
sults long  ago  if  opportunity  had  been  offered  them  to 
do  so?  It  has  been,  in  the  past,  far  easier  to  criticise  a 
power  which  was  helpless  to  supply  a  remedy,  than  to 
suggest  one  or  move  legislative  power  to  adopt  one. 

"I  am  constrained  to  write  the  foregoing  to  give  de- 
served credit  to  the  patient,  earnest,  efficient  labor  of 
the  lawmakers  who  placed  the  enactment  in  question 
upon  the  statute  book  of  this  state.  It  would  give  them 
too  little  credit  to  record,  merely,  that  they  bowed  to 
public  demand,  and  too  little  credit  to  this  court  to  leave 
room  for  the  thought  that  it  has  been  influenced  by  any 
such  demand  to  give  the  Constitution  any  new  shade  of 
meaning  to  sustain  the  enactment,  or  that  it  would 
change,  or  arrogate  to  itself  power  or  disposition  to 
change,  fundamentals  in  any  sense,  by  judicial  interpre- 
tation. 

"As  to  the  subject  of  the  enactment,  advanced  think- 
ers in  economics,  law  and  legislation  have  been  at  the 
front  and  the  public  has  been  slow  to  follow.  It  took 
the  industrious,  able,  patient,  tactful  legislative  commit- 
tee over  two  years  of  activity,  to  educate  the  people  up 
to  willingness  to  accept  on  trial  the  mild  law  before  us. 


59 !  WISCONSIN   ACT.  §  228 

Opposition  had  to  be  overcome  by  education  on  all  sides. 
The  Legislature  responded,  not  so  much  to  a  general  de- 
mand, as  to  a  constitutional  command,  to  conserve,  in 
the  light  of  the  present,  the  public  welfare. 

"The  remarks  in  the  court's  opinion  which  may  sug- 
gest to  some  that  a  different  meaning  is  to  be  read  out 
of  the  Constitution  now  than  formerly;  that  it  may  have 
meant  one  thing  when  framed  and  later  another,  and 
now  be  held  differently,  according  to  judicial  interpreta- 
tion to  meet  social  necessities  as  recognized  by  human 
instrumentalities  in  the  particular  environment — prob- 
ably was  not  so  intended,  but  I  sense  danger  of  a  con- 
trary impression  going  out.  Such  ability  to  bend  the 
fundamental  law  in  the  name  of  judicial  interpretation — 
the  idea  that  an  eighteenth  century  construction  for  an 
eighteenth  century  condition  may  not,  and  at  the  hands 
of  the  court  does  not  have  to,  fit  a  twentieth  century 
condition — has  been  advanced  by  some,  but  not,  signifi- 
cantly at  least,  by  any  court.  On  the  contrary,  it  has 
met  with  universal  condemnation.  That  it  is  wrong, 
every  man  of  eminence  that  has  ever  written  upon  the 
subject  in  the  past,  as  well  as  the  very  nature  of  the  case 
and  the  very  logic  and  limitations  of  judicial  interpreta- 
tion, bear  witness.  The  fertile  method  of  dealing  with 
the  Constitution  has  been  characterized  as  one  which 
has  "furnished  a  mode  of  argument  which  would  on  the 
one  hand  leave  the  Constitution  crippled  and  inanimate, 
or  on  the  other  give  it  an  extent  of  elasticity  subversive 
of  all  rational  boundaries."  Story,  Constitution,  389. 

"Manifestly,  there  can  be  but  one  right  interpretation 
or  construction  of  the  Constitution.  It  is  said  to  have 
been  constructed  of  general  declarations,  so  that,  in  let- 
ter and  spirit,  it  might  abide  indefinitely  and  would  have 
to  so  abide,  dealing  with  all  conditions  and  all  ages,  ex- 
cept as  amended  in  the  manner  therein  specified.  Con- 
siderately with  that,  there  can  be  but  one  viewpoint  for 
interpretation,  and  that  is  the  one  from  which  the  fram- 


§  228      WORKMEN'S  COMPENSATION  AND  INSURANCE.      592 

ers  of  the  system  builded.  That  is  unmistakably  indi- 
cated in  Marbury  v.  Madison,  1  Cranch  137,  2  L.  Ed.  60; 
Martin  v.  Hunter,  1  Wheat.  304,  4  L.  Ed.  97. 

"We  speak  of  the  Constitution  in  a  general  sense — 
the  American  system,  commencing  with  the  federal 
model  and  including  the  state  Constitutions  framed  in 
harmony  therewith.  In  all  writings  thereon,  from  Chief 
Justice  Marshall  to  date,  the  idea  that  it  can  not  be  prop- 
erly judicially  changed  to  suit  the  notions  of  the  times, 
and  that  there  will  appear  little  need  therefor  when  the 
real  nature  thereof  is  comprehended,  is  made  prominent. 
It  was  that  idea,  largely,  which  moved  one  eminent 
writer  to  speak  of  it  as  the  "greatest  single  achievement 
of  the  eighteenth  century,"  and  another  to  characterize 
it  as  the  "most  wonderful  work  ever  struck  off  at  a  given 
time  by  the  brain  and  purpose  of  man."  Truly,  it  can 
not  be  said  of  that  which  was  so  unequaled  in  the  eight- 
eenth century,  and,  we  may  well  add,  was  unequaled  in 
the  nineteenth  and  has  been  since,  that  it  can  take  the 
cast,  so  to  speak,  from  time  to  time  of  its  environment 
as  judicial  instrumentalities  may  view  it  through  the 
vista  of  conditions  in  praesenti.  All  history  says  no. 
The  very  inconsistency  of  the  contrary  says  no.  The 
absence  of  any  necessity  for,  and  the  destructive  dan- 
ger of,  any  such  quality,  say  no. 

"A  new  remedy  for  a  new  condition  within  the  bound- 
aries of  reason  is  within  legitimate  police  authority. 
Who  could  wish  more?  How  could  more  exist  and 
human  liberty — natural,  inherent  rights — be  safe? 
Would  it  not  be  well  to  recur  to  the  classic  rule  for  test- 
ing legitimacy  of  legislative  enactments,  given  by  the 
most  eminent  judicial  expounder  of  the  Constitution  of 
which  the  history  of  American  jurisprudence  bears 
record: 

"  'Let  the  end  be  legitimate,  let  it  be  within  the  scope 
of  the  Constitution,  and  all  means  which  are  appropri- 
ate, which  are  plainly  adapted  to  that  end,  which  are  not 


593  WISCONSIN  ACT.  §  228 

prohibited,  but  consist  with  the  letter  and  spirit  of  the 
Constitution,  are  constitutional.'  McCulloch  v.  Mary- 
land, 4  Wheat.  316,  421,  4  L.  Ed.  579. 

"With  that  and  the  significance  of  the  declared  pur- 
pose and  central  thought  of  the  Constitution  in  mind, 
much  of  the  supposed  difficulty  which  has  stimulated 
suggestions  of  competency  to,  and  necessity  for,  bend- 
ing it  by  a  usurpatious  method  of  interpretion,  will  dis- 
appear. 

"How  are  we  to  determine  when  the  purpose  of  a  law 
in  the  field  of  police  power,  and  unaffected  by  any  ex- 
press prohibition,  is  legitimate?  It  seems  the  answer 
is  easy.  Look  first  to  the  purpose  of  the  Constitution, 
found  in  the  declaration,  "Grateful  to  Almighty  God  for 
our  freedom,  in  order  to  secure  its  blessings,  form  a 
more  perfect  union,  insure  domestic  tranquility  and  pro- 
mote the  general  welfare"  we  "do  establish  this  Con- 
stitution." Then  to  the  central  thought — the  very 
superstructure — upon  which  the  whole  was  builded: 
"All  men  are  born  equally  free  and  independent  and 
have  certain  inherent  rights,  among  those  are  life,  lib- 
erty and  the  pursuit  of  happiness."  There  is  voiced  a 
broad  spirit,  covering  as  this  court  has,  in  effect,  many 
times  said,  a  field  as  limitless  as  are  human  needs.  The 
language  was  not  used  for  mere  rhetorical  ornamenta- 
tion or  effect,  but  to  suggest  the  permissible  scope  of 
legislation  in  the  zone  of  general  welfare,  its  extent  and 
its  limitations.  Durkee  v.  Janesville,  28  Wis.  464,  9  Am. 
Rep.  500;  State,  etc.,  v.  Kreutzberg,  114  Wis.  530,  90  N. 
W.  1098,  58  L.  R.  A.  748,  91  Am.  St.  Rep.  934;  State, 
etc.,  v.  Redmon,  134  Wis.  89,  114  N.  W.  137,  14  L.  R.  A.( 
(N.  S.)  229,  126  Am.  St.  Rep.  1003;  Bonnett  v.  Vallier, 
136  Wis.  193,  116  N.  W.  885,  17  L.  R.  A.  (N.  S.)  486, 
128  Am.  St.  Rep.  1061. 

"So  here,  as  it  seems,  the  initial  question  was  this : 
Is  the  purpose  of  the  law  legitimate,  within  the  broad 
dominating  spirit  mentioned?  The  answer  must  be  yes. 

39— BOYD  W  C 


§  228      WORKMEN'S  COMPENSATION  AND  INSURANCE.      '594 

as  the  manifest  purpose  is  to  promote  every  element  of 
the  central  thought  of  the  Constitution.  Anything 
fairly  within  that  has  always  been  and  must,  necessarily 
always,  be  held  legitimate.  Keeping  in  mind  that  in  the 
selection  of  means  the  Legislature  has  a  very  broad 
comprehensive  field  in  which  to  freely  make  a  choice, 
the  next  question  is,  are  the  means  contemplated  rea- 
sonably appropriate  to  the  end  to  be  attained?  Not  are 
they  the  best  means,  but  are  they  proper  means,  in  that 
they  are  not  within  any  express  prohibition  and  tend  to 
conserve  rather  than  to  destroy?  All  must  agree  in  the 
affirmative  on  that  in  harmony  with  the  best  thought  of 
all  the  more  civilized  nations  of  Europe.  The  difficulty 
here  has  been,  want  of  appreciation  of  the  great  eco- 
nomic truth,  that  personal  injury  losses  incident  to  in- 
dustrial pursuits,  as  certainly  as  wages,  are  a  part  of  the 
cost  of  production  of  those  things  essential  to  or  proper 
for  human  consumption,  and  the  more  direct  they  are 
incorporated  therein,  the  less  the  enhancement  of  cost 
and  the  better  for  all. 

"True,  the  old  remedies  for  losses  mentioned  have 
been  inefficient  and  wasteful.  They  are,  economically 
speaking,  unscientific  and  have  always  been.  It  is  more 
apparent  now  than  formerly  by  reason  of  greater  and 
more  numerous  modern  activities  and  methods,  that  is 
all.  In  truth,  the  infirmity  from  an  economic  stand- 
point, and  from  the  standpoint  of  man's  duty  to  his  fel- 
low men,  has  always  existed,  though  the  quantum  of 
regrettable  results  and  useless  waste  has  greatly  in- 
creased by  the  multiplication  of  human  activities  and 
physical  instrumentalities. 

"So  it  will  be  seen,  I  think,  that  while  particular  means 
may  be  reasonably  appropriate  to  a  legitimate  purpose 
under  some  conditions  characterizing  a  particular 
period,  and  not  have  been  at  a  prior  time,  no  change 
in  the  Constitution  is  involved  in  remedying  the  misfit. 
The  end  being  proper  the  legitimacy  of  means  may  be 


595  WISCONSIN  ACT.  §  228 

dependable  upon  conditions,  the  question  turning  more 
on  matter  of  fact  than  anything  else.  The  change  of 
mere  means  does  not  require  a  fundamental  change,  so 
long  as  legitimacy  of  end  and  reasonable  appropriate- 
ness of  means  shall  be  kept  efficiently  in  view. 

"Want  of  appreciation,  in  my  judgment,  of  the  Con- 
stitution from  the  viewpoint  suggested,  has  led  some  to 
advocate  judicial  changes  to  meet  new  conditions,  while 
others  have  insisted  that  many  amendments,  made  in 
the  prescribed  way,  practically  substituting  a  new  sys- 
tem for  that  of  the  fathers,  are  necessary  or  advisable, 
and. still  others  have  maintained  the  broad  liberal  view 
suggested,  which  was  early  entrenched  in  the  juris- 
prudence of  this  county  by  the  judicial  writings  of  Chief 
Justice  John  Marshall.  That  idea  renders  changes  of 
any  kind  unnecessary  to  legislative  competency  to  legis- 
late to  any  extent  which  reasonably  promotes  a  consti- 
tutional object.  Anything  further  would  destroy,  or 
tend  to  destroy,  instead  of  promote  public  welfare.  Such 
idea  is  the  safe  one  and  the  right  one  from  the  view- 
point, I  think,  of  the  fathers.  It  is  the  one  sturdily 
maintained  by  this  court.  It  is  the  one  I  feel  competent 
to  say,  all  members  of  this  court  would  now  maintain 
and  that  nothing  in  its  opinion  should  be  otherwise 
taken. 

"If  the  Constitution  is  to  efficiently  endure,  the  idea 
that  it  is  capable  of  being  resquared,  from  time  to  time, 
to  fit  new  legislative  or  judicial  notions  of  necessities  in 
praesenti,  instead  of  new  legislation  being  tested  by  it, 
must  be  combated  whenever  and  wherever  advanced, 
and  wrong  impressions  in  regard  to  the  matter  carefully 
guarded  against.  To  even,  significantly,  speak  of  mak- 
ing the  Constitution  adaptable  to  new  conditions  by 
means  of  interpretation,  when  the  selection  of  new  and 
constitutional  means,  adaptable  to  such  conditions,  is 
meant,  is  liable  to  confuse  and  weaken  that  high  regard 
all  should  have  for  the  fundamental  law  as  a  broad, 


§  228      WORKMEN'S  COMPENSATION  AND  INSURANCE.      596 

definite,  certain,  comprehensive,  unvarying  and  unvari- 
able  system,  other  than  by  the  means  therein  pointed 
out.  Dark  will  be  the  day,  if  that  day  will  ever  come, 
for  the  people  of  this  country,  and  dark  to  the  people 
of  all  countries  whose  attention  is  directed  here  for  les- 
sons in  constitutional  government,  when  our  system 
shall  not  be  held  up  by  the  courts  as  speaking  the  same 
at  one  time  as  at  another,  except  in  so  far  as  changes 
shall  be  made  in  the  particular  way.  That  is  the  doc- 
trine of  Marbury  v.  Madison,  1  Cranch  137,  2  L.  Ed.  60. 
No  one  can  read  that  great  exposition  of  our  system 
without  appreciating  how  illogical  it  is  to  speak  of  inter- 
pretation as  an  instrumentality  for  giving,  from  time  to 
time,  a  different  cast  to  the  fundamental  law.  The 
whole  spirit  of  the  court's  logic  condemns  such  reason- 
ing as  heresy.  Note  the  significance  of  this :  "The 
exercise  of  this  original  right"  to  make  a  system  of  gov- 
ernment "is  a  very  great  exertion,  nor  can  it,  nor  ought 
it  to  be  frequently  repeated.  The  principles  therefore, 
so  established,  are  deemed  fundamental,  and  as  the  au- 
thority from  which  they  proceed  is  supreme,  and  can 
seldom  act,  they  are  designed  to  be  permanent."  In 
that  connection  the  court  added,  in  unanswerable  logic, 
that  the  Constitution  is  not  only  the  paramount  law,  but 
is  absolutely  unchangeable  by  ordinary  means ;  that  laws 
adaptable  to  it  are  legitimate,  and  laws  so-called,  not  so 
adaptable,  are  not  laws  at  all.  It  was  designed  to  gov- 
ern the  Legislature  and  the  courts  as  well.  That  con- 
ception is  of  something  high  above  either  Legislatures 
or  courts,  to  vary  it.  How  can  that  be  done  by  indirec- 
tion, miscalled  interpretation  and  construction — a 
method  of  rounding  a  syllogism  with  a  conclusion  based 
on  false  premises.  Interpretation  of  that  sort  would 
enable  courts  to  evade  and  render  useless  the  most  care- 
fully drawn  enactments  whether  of  fundamental  or 
subsidiary  law. 

"So,  in  short,  I  think  the  law  in  question  is  a  reason- 


597  WISCONSIN  ACT.  §  228 

ably  appropriate  means  to  effect  a  constitutional  pur- 
pose; that  the  Constitution  needs  no  bending  whatever 
in  order  to  sustain  it  in  its  essential  features,  and  none 
would  be  proper  if  the  contrary  were  the  case. 

"The  foregoing  I  can  but  regard  out  of  harmony  with 
this,  in  its  letter:  "Changed  social,  economic  and  gov- 
ernmental conditions  and  ideals  of  the  time,  as  well  as 
the  problems  the  changes  have  produced,  must  largely 
enter  into  the  consideration  and  become  influential  fac- 
tors in  the  settlement  of  problems  of  construction  and 
interpretation" — so  far  as  it  is  pregnant  with  the 
thought  that  the  fundamental  law  is  judicially  change- 
able. The  words  "problems"  of  "construction"  and 
"interpretation"  I  think  were  unfortunately  used,  if  the 
thought  was  merely  of  problems  of  whether  new  enact- 
ments to  cope  with  new  conditions  are  within  or  without 
the  legitimate  field  of  legislative  activity,  having  regard 
to  appropriateness  of  means  to  effect  a  constitutional 
end.  The  latter  might  be,  as  I  have  suggested,  at  one 
time  and  not  a  half  century  theretofore,  because  changed 
conditions  may  render  an  end  legitimate,  within  the  un- 
changeable scope  of  the  fundamental  law,  which  earlier 
was  not,  or  the  selected  means  to  effect  that  end  might 
be  reasonably  appropriate  at  one  time,  though  not  so  a 
century,  more  or  less,  theretofore. 

"Why  treat  judicial  interpretations  of  law  as  a  process 
of  following  changing  ideals,  social  problems  and  ideas, 
since  its  sole  office  is  to  solve  uncertainties  as  to  the  in- 
tent at  the  time  of  the  enactment?  Interpretation  com- 
mences where  begins  uncertainty — obscurity  as  to  the 
meaning  the  lawgivers  purposed  putting  into  the  enact- 
ment and  succeeded,  discoverably,  in  expressing,  liter- 
ally or  inferentially.  In  short,  the  gist  of  the  matter  is 
the  intent  when  the  law  was  made,  not  what  one  can 
make  the  language  say  in  a  different  environment  from 
that  of  its  origin  to  accomplish  a  desired  purpose.  No 
bending  is  permissible  for  the  latter  purpose,  but  for  the 


§  228     WORKMEN'S  COMPENSATION  AND  INSURANCE.      598 

former  the  very  letter  may  have  to  give  way  to  the 
spirit.  State,  etc.,  v.  Ryan,  99  Wis.  123,  74  N.  W.  544; 
State,  etc.,  v.  R.  R.  Comm.,  137  Wis.  80,  117  N.  W.  846; 
State,  etc.,  v.  Phelps,  144  Wis.  1,  128  N.  W.  1041.  The 
expounder  is  to  "look  to  the  whole  and  every  part  of  the 
law,  to  the  intent  apparent  from  the  whole,  to  the  sub- 
ject-matter, to  the  effects  and  consequences,  to  the  rea- 
son and  spirit,  and  thereby  ascertain  the  ruling  idea 
present"  in  the  lawgiving  body's  mind  at  the  time  of  the 
enactment,  and  then,  so  far  as  such  idea  can  reasonably 
be  spelled  out  of  the  enactment,  give  effect  to  it  though 
it  violates  the  letter.  Wisconsin  Industrial  School  for 
Girls  v.  Clark  County,  103  Wis.  651,  659,  79  N.  W.  422. 
"True,  'the  Constitution  is  a  very  human  document' 
in  the  sense  that  it  is  a  collection  of  words  recognizing, 
characterizing  and  guaranteeing  the  natural  rights  of 
man — all  that  are  essential  to  public  welfare  in  the  social 
state,  but  not  so  in  the  sense  of  creating  such  rights. 
The  right  to  life,  to  liberty,  to  happiness,  to  equality  one 
with  another,  are  not  of  human  creation.  They  are  of 
divine  origin,  though  by  human  instrumentality  some 
one  or  more  of  them  might  be  taken  away.  It  is  to  pre- 
vent that,  in  the  main,  the  Constitution  was  framed.  So 
anything  not  expressly  prohibited  which  reasonably 
conserves  those  God-given  rights,  is  within  its  saving 
grace.  Anything  which  clearly  or  materially  impairs  or 
destroys  any  one  of  them  is  condemned  by  it.  It  were 
better  to  inculcate  the  idea  that  it  is  not  subject  to 
change  with  the  change  of  times  and  conditions,  though 
such  new  conditions,  by  logical  process  may  well  be  the 
deciding  factor  as  to  whether  legislative  means,  resorted 
to  for  a  particular  end,  are  within  or  without  the  un- 
changeable constitutional  principles.  Manifestly  it  must 
have  been  the  latter  conception  of  the  Constitution 
which  so  inspired  statesmen  of  the  first  century  of  the 
republic  with  veneration  for  it.  That  might  well  have 
inspired  Webster  to  love  it,  "to  have  a  profound  passion 


599  WISCONSIN  ACT.  §  228 

for  it,"  to  "cherish  it  day  and  night,"  to  "live  on  its 
healthful  saving  influence,"  and  to  "trust  never,  never  to 
cease  to  heed  it  until"  he  should  "go  to  the  grave  of  his 
fathers,"  to  "earnestly  desire  not  to  outlive  it."  It  is 
good  to  draw  inspiration  from  those  lofty  sentiments. 
I  would  not  by  word  or  deed,  to  any  extent  give  rise  to 
the  thought  that  the  ancient  dignity  of  our  system,  in 
judicial  conception  here,  has  changed. 

"At  no  period  has  appreciation  of  the  great  work  of 
the  fathers  been  more  important  than  now.  We  need 
to  sit  anew,  in  thought,  at  their  feet — revive  knowledge 
that  the  result  was  wrought  by  a  body  or  men — repre- 
sentatives of  the  great  seats  of  learning  of  the  English 
speaking  race  of  two  hemispheres,  and  otherwise  men 
of  broad  experience,  many  of  whom  had  been  students 
of  all  federal  governments  of  all  prior  ages  in  prepara- 
tion for  the  special  task — as  the  historian  declared,  "the 
goodliest  fellowship  of  lawgivers  whereof  this  world  has 
record" — a  body  dominated  by  specialists  inspired  "by 
ennobling  love  for  their  fellow  men"  and  the  thought 
that  they  wrought,  not  for  their  age  alone,  but  for  the 
ages  to  come,  and,  so,  sought  to  avoid  the  infirmities  of 
previous  systems  of  government  by  the  people,  by  care- 
fully providing  that  no  change  in  letter  or  spirit  should 
occur  except  in  a  particular  and  most  deliberate  and  con- 
servative way. 

"Appreciating  that  the  report  of  this  case  will  be 
widely  read  and  commented  upon  within  and  without 
the  field  of  judicial  administration,  I  particularly  desire 
to  avoid  creation  of,  or  administering  to,  false  impres- 
sions respecting  the  dignity  of  the  abolished  defenses 
and  the  responsibility  of  courts  for  their  existence. 

"True,  such  defenses  are  of  judicial  origin,  but  not  as 
that  term,  without  explanation,  might  be  understood  by 
laymen.  They  are  so  in  the  same  sense  that  a  large 
part  of  the  law,  upon  which  rights  and  remedies  depend, 
is  of  such  creation.  Nevertheless,  all  such  is  as  much 


§  228     WORKMEN'S  COMPENSATION  AND  INSURANCE.     600 

the  law  of  this  state,  to  be  respected  by  the  courts,  as 
any  part  of  the  Constitution  or  any  act  of  the  Legisla- 
ture. It  did  not  originate  with  the  courts  of  our  age  or 
century.  It  has  not  been  within  the  competency  of  this 
court  at  any  time  to  change  it.  The  defenses  in  ques- 
tion became  a  part  of  the  law  of  the  mother  country 
through  its  judicial  administration  long  before  the  Revo- 
lution. The  law  of  such  country,  so  far  as  adaptable  to 
our  conditions  here,  was  adopted  when  our  independent 
government  was  formed,  and  became  the  common  law 
of  this  country.  It  was  in  full  force  in  the  territory  of 
Wisconsin  when  our  state  was  admitted  into  the  Union. 
All  officers  were  sworn  to  maintain  it — that  part  relating 
to  the  law  of  negligence  as  well  as  the  rest — and  were 
bound  to  do  so  with  as  much  fidelity  as  if  incorporated 
into  the  written  law.  When  the  Constitution  was 
adopted  the  unwritten  law  was  substantially  given  the 
cast  of  written  law  and  as  such  firmly  entrenched  as 
fundamental,  subject  to  legislative  change,  by  section 
13,  art.  14,  of  the  Constitution  in  these  words:  "Such 
parts  of  the  common  law  as  are  now  in  force  in  the  terri- 
tory of  Wisconsin,  not  inconsistent  with  this  Constitu- 
tion, shall  be  and  continue  part  of  the  law  of  this  state 
until  altered  or  suspended  by  the  Legislature." 

"Every  judge  of  every  court  has  been  sworn  to  main- 
tain the  common  law  as  thus  intrenched  in  our  system 
till  changed  by  the  Legislature.  So  from  the  viewpoint 
of  the  present,  the  law  of  negligence — including  the  de- 
fenses in  question — does  not  lose  in  dignity  when  com- 
pared with  an  act  of  the  Legislature,  because  ages  ago 
it  had  judicial  origin.  It  was,  as  we  have  seen,  with  de- 
liberation adopted  by  the  people  when  they  organized 
our  state  government.  No  court  in  our  time  has  had 
competency,  we  repeat,  to  change  or  create  or  destroy 
in  that  field.  Power  in  that  regard  was  expressly  re- 
served to  the  Legislature.  It  has  been  free  to  act  in  the 
matter,  within  such  reasonable  limits  as  not  to  violate 


6OI  WISCONSIN   ACT.  §  229 

guaranteed  rights,  for  over  60  years,  while  the  courts 
have  been  powerless  to  do  more  than  to  determine,  to 
the  best  of  their  ability,  the  law  as  fundamentally  adopt- 
ed, or  subsequently  changed,  by  the  lawmaking  power, 
and  apply  it. 

"Under  the  power  reserved  to  the  Legislature  as 
aforesaid,  it  was  competent  for  it  to  abolish  the  defenses 
in  question,  and  to  do  it  in  such  a  way  as  to  create  in- 
ducement for  employers  to,  voluntarily,  become  parties 
to  the  new  system  designed  to  better  conserve  human 
life  and  human  happiness.  Call  the  method  "constitu- 
tional coercion,"  if  thought  best.  That  casts  no  dis- 
credit upon  the  method,  for  where  coercion  is  necessary 
coercion  is  legitimate,  no  guaranteed  rights  being  in- 
fringed upon. 

"It  is  needless  to  add  that  I  heartily  endorse  all  said 
in  the  court's  opinion  regarding  the  importance  of  the 
legislation  which  has  received  approval.  May  it  be  the 
beginning  of  a  well  rounded  out  constitutional  system 
making  every  one  who  consumes  any  product  of  labor 
for  hire  pay  his  proportionate  amount  of  the  cost  of  the 
creation  representing  the  personal  injury  misfortunes  of 
those  whose  hands  have  enabled  him  to  secure  the  ob- 
jects of  human  desire,  thus  minimizing  the  sufferings 
which  are  the  natural  incidents  of  industry  and  should 
be  borne,  so  far  as  they  represent  pecuniary  sacrifice,  by 
the  mass  of  mankind  whose  desires  are  administered 
to  by  such  industry." 

§  229.  Decisions  of  commission — Construction  of 
word  "employment." — The  commission  was  called  upon 
to  construe  the  word  "employment"  in  the  case  of  Wiken 
v.  Superior  Stevedores  Company.4  The  evidence  show- 
ed that  on  Nov.  12,  1911,  the  applicant  was  employed  by 
respondent  as  a  dock  laborer  at  a  wage  of  30  cents  per 
hour.  While  engaged  in  unloading  merchandise  from 

*  1  Bulletin  Wis.  Indus.  Com.  No.  3,  p.  88. 


§  230     WORKMEN'S  COMPENSATION  AND  INSURANCE.      602 

a  vessel,  applicant  met  with  an  accident  which  resulted 
in  the  loss  of  the  first  two  fingers  of  his  right  hand.  Ap- 
plicant claimed  compensation  for  a  permanent  partial 
disability.  Employer  denied  that  there  was  any  perma- 
nent disability.  The  evidence  showed  that  there  would 
be  no  permanent  disability  or  loss  of  wage  after  the  in- 
juries had  healed  and  that  applicant  was  disabled  for  a 
period  of  18  weeks. 

AWARD:  That  the  respondent  pay  for  such  medical 
and  surgical  treatment  reasonably  required  at  the  time 
of  the  accident  and  thereafter  for  a  period  of  90  days 
and  also  pay  the  sum  of  $7.50  per  week  for  a  period  of 
18  weeks,  $135.00  in  all. 

OPINION  :  At  the  time  of  the  injury  applicant  was 
engaged  in  moving  freight  with  a  hand  truck.  It  is 
contended  that  such  was  his  employment  within  the 
meaning  of  the  term  "employment"  as  used  in  section 
2394-11-1  (d)  of  chapter  50  of  the  laws  of  1911.  We 
consider  that  such  construction  of  the  term  "employ- 
ment" is  too  narrow.  The  applicant  may  more  proper- 
ly be  said  to  have  been  engaged  in  the  employment  of 
dock  man  or  dock  laborer.  In  other  words,  the  appli- 
cant was  engaged  in  common  labor  in  and  about  dock 
work. 

( 

§  230.  Decisions  of  commission — Powers  of  com- 
mission— Review  of  awards — Construction  of  word 
"employment." — The  commission  was  called  upon  to  de- 
fine its  powers  to  review  awards  in  the  case  of  Winter 
v.  Mellen  Lumber  Company.5 

On  September  21,  1911,  applicant  was  in  the  em- 
ploy of  the  respondent  as  a  shingle  weaver.  On  this 
date  he  met  with  an  accident  which  resulted  in  the  loss 
of  his  thumb  and  first  finger  on  his  left  hand.  At  the 
time  of  the  accident  the  applicant  was  earning  $21  per 
week.  Section  2394-10  of  the  compensation  act  pro- 

5 1  Bulletin  Wis.  Indus.  Com.  No.  3,  p.  89. 


603  WISCONSIN   ACT.  §  230 

vides  that  the  average  annual  earnings  of  an  employe 
shall  not  be  taken  at  more  than  $750.  The  average 
weekly  wage  is  1-52  of  the  average  annual  wage;  1-52 
of  $750  is  $14.42.  The  evidence  shows  that  after  the 
accident  the  applicant  will  be  able  to  earn  only  $9  per 
week.  His  earnings  at  the  time  of  the  accideni  were 
$14.42  per  week.  His  weekly  loss  of  wage  is  $5.42. 

AWARD:  That  respondent  pay  the  applicant  com- 
pensation at  the  rate  of  65  per  cent,  of  $5.42  per  week 
for  a  period  of  fifteen  years.  This  amounts  to  $3.52  per 
week  for  fifteen  years.  The  award  also  directs  the  re-' 
spondent  company  to  pay  for  such  medical  and  sur- 
gical treatment,  supplies  and  apparatus  as  were  reason- 
ably necessary  at  the  time  of  the  accident  and  there- 
after for  a  period  of  ninety  days  to  relieve  and  cure  the 
applicant  from  the  effects  of  the  injury. 

On  motion  to  set  aside  the  award  the  following 
memorandum  was  filed  by  the  commission: 

MEMORANDUM  :  The  applicant  was  injured  on 
Sept.  21,  1911,  while  employed  as  a  shingle  sawyer  in 
respondent's  mill  in  Ashland  county,  Wisconsin.  While 
attempting  to  remove  a  spault — a  small  piece  of  shingle 
block — from  the  machine,  his  left  hand  was  thrown 
against  the  saw,  and  he  lost  his  thumb  and  forefinger. 

The  matter  was  referred  to  Hon.  A.  W.  Sanborn,  of 
Ashland,  Wis.,  who  was  appointed  examiner  to  take 
the  evidence  and  report.  Mr.  Sanborn  held  a  formal 
hearing,  at  which  witnesses  were  sworn  and  testified, 
and  a  sworn  statement  of  the  applicant  in  writing  was 
admitted  in  evidence  on  stipulation.  After  the  taking 
of  the  testimony  counsel  for  each  party  submitted  to  the 
examiner  written  argument  in  support  of  findings  in 
behalf  of  his  client.  The  examiner  made  findings  of 
fact,  and  reported  the  evidence  and  findings  to  the  com- 
mission and  the  committee  thereupon  on  its  own  mo- 
tion, assuming  that  the  hearing  was  closed,  reviewed 
the  evidence  and  findings  of  the  examiner  reported,  read 


§  230     WORKMEN'S  COMPENSATION  AND  INSURANCE.      604 

the  written  arguments  of  counsel,  and  entered  its  find- 
ings and  made  its  award,  which  findings  substantially 
followed  the  findings  of  the  examiner. 

The  respondent  makes  application  to  have  the  award 
set  aside,  and  for  leave  to  make  oral  argument  before 
the  commission.  The  commission  was  under  the  im- 
pression that  the  parties  finally  submitted  their  case 
"by  their  written  arguments,  or  it  would  have  been 
pfeased  to  listen  to  oral  argument  before  making  its 
findings.  Before  the  findings  and  award  were  actually 
made,  a  request  on  the  part  of  the  respondent  for  such 
hearing  was  made  in  a  letter  to  the  commission,  but  by 
some  mistake  the  letter  was  not  brought  to  the  atten- 
tion of  the  commission  before  the  findings  and  award 
were  entered,  and  copies  thereof  sent  to  the  parties. 

The  consideration  of  this  application  involves  two 
questions: 

1.  The  power  of  the  commission  to  set  aside  its 
award.     This  question  will  sooner  or  later  have  to  be 
determined  by  the  courts.    The  commission  is  not  ex- 
pressly given  such  power;  whether  it  has  implied  power 
or  not,  is  not  here  determined. 

2.  The  exercise  of  discretion.     On  this  point  we 
can  not  see  how  the  respondent  can  add  anything  to 
the   written   arguments  before   the   examiner  and   the 
written  arguments  used  on  this  motion  to  which  we 
have  given  careful  attention. 

The  claim  is  made  that  there  is  no  evidence  upon 
which  to  support  the  findings  and  award.  We  do  not 
so  understand  the  evidence.  The  injury  is  conceded; 
the  applicant  denies  ability  to  run  a  shingle  saw,  and 
claims  total  disability.  Respondent's  evidence  is  all  to 
the  effect  that  the  witnesses  think  that  the  applicant 
will  in  time  recover  his  efficiency  as  a  shingle  sawyer; 
that  the  applicant  suffers  some  incapacity  must  be  ad- 
mitted; the  law  requires  the  award  to  be  based  upon 
disability  and  loss  of  wage  as  applied  to  the  employ- 


605  WISCONSIN    ACT.  §  230 

ment  in  which  applicant  was  performing  service  at  the 
time  of  the  injury.  The  commission  is  not  inclined  to 
give  the  term  "employment"  as  used  in  the  statute,  a 
narrow  or  restricted  construction.  It  does  not  appear 
that  respondent  has  offered  applicant  employment  as  a 
shingle  sawyer  since  his  recovery.  Nor  can  the  com- 
mission see  how  the  applicant  will  be  able  to  return  to 
such  employment.  The  position  of  shingle  sawyer  is 
an  expert  position,  requiring  quick  and  accurate  re- 
moval of  the  spault  from  the  machine  and  the  placing 
of  the  new  shingle  block  in  the  machine  about  five  times 
per  minute.  Removing  the  spault  and  replacing  it  with 
a  shingle  block  must  be  done  in  the  fraction  of  a  second, 
if  done  efficiently.  This  work  requires  the  use  of  both 
hands,  and  requires  the  grip  of  the  hand.  A  fumble 
might  mean  another  loss  of  a  portion  of  the  hand.  The 
shingle  sawyer  works  in  a  crew  of  four,  and  any  inef- 
ficiency of  his  extends  to  the  other  members  of  the 
crew.  If  it  were  shown  that  there  is  some  other  expert 
position  at  a  machine  in  a  shingle  mill  where  appli- 
cant's ability  to  earn  wages  is  not  impaired,  we  would 
be  inclined  to  define  his  employment  in  terms  to  in- 
clude such  position;  but  the  evidence  does  not  disclose 
any  such  position. 

With  the  policy  of  the  law  limiting  our  considera- 
tion to  the  employment  in  which  the  injured  employe 
was  performing  service  at  the  time  of  the  accident,  we 
have  nothing  to  do.  It  may  be  said,  however,  that  our 
experience  so  far  fully  demonstrates  that  this  rule 
works  both  ways — to  the  advantage  of  the  employer 
quite  as  often  as  to  the  advantage  of  the  employe — and 
the  average  award  is  not  large  for  such  injuries.  The 
award  in  this  case  figured  at  present  worth  amounts  to 
$2,217;  this,  it  may  be  admitted,  is  a  large  award  for 
this  injury,  but  the  case  on  the  facts  is  exceptional. 

The  respondent  complains  that  the  commission  prac- 
tically adopted  the  findings  of  the  examiner,  and  that 


§  231      WORKMEN'S  COMPENSATION  AND  INSURANCE.      606 

the  examiner  had  no  authority  to  make  findings.  We 
concede  that  the  findings  of  the  examiner  had  weight 
in  our  consideration  of  the  evidence;  it  was  our  confi- 
dence in  his  ability  and  good  judgment  that  caused  us 
to  appoint  him  as  examiner.  The  commission  feels 
that  under  the  law  it  is  not  confined  to  the  evidence 
taken  on  the  hearing  in  the  same  degree  as  courts  are 
in  their  proceedings.  The  law  contemplates  that  the 
commission  shall  get  all  the  facts  and  information  avail- 
able and  render  its  award  accordingly.  The  commis- 
sion calls  attention  to  the  note  of  the  legislative  com- 
mittee as  justifying  this  conclusion.  The  construction 
given  to  the  section  by  that  committee  must  be  held 
to  have  been  adopted  by  the  legislature.  However,  the 
commissioners  examined  the  evidence  and  briefs  fully, 
and  brought  to  bear  their  independent  judgment,  and 
arrived  at  the  same  verdict  as  the  examiner.  Conced- 
ing that  the  examiner  had  no  authority  to  make  find- 
ings, still  the  commission  feels  that  the  parties  in  sub- 
mitting the  case  to  the  examiner  for  his  findings,  is  not 
now  in  a  position  to  object  to  the  power  of  the  examiner 
to  make  such  findings. 

The  motion  to  set  aside  the  award  and  rehearing  is 
denied. 

§  231.  Decisions  of  commission — Construction  of 
"wilful  misconduct" — The  case  of  Neumann  v.  Milwau- 
kee Electric  Railway  and  Light  Company6  construed 
an  instance  of  "wilful  misconduct". 

On  Feb.  9,  1912,  Robert  Neumann  was  in  the  serv- 
ice of  the  respondent  as  a  street  railway  conductor.  At 
about  1 :05  a.  m.  on  this  date  the  car  on  which  Robert 
Neumann  was  acting  as  conductor  reached  the  end  of 
the  line,  and  when  trolleys  had  been  changed  for  the 
run  back  to  car  barn,  Robert  Neumann  took  the  motor- 
man's  place  and  ran  the  car  several  hundred  feet  until 

6  1  Bulletin  Wis.  Indus.  Com.  No.  3,  p.  92. 


607  '    WISCONSIN    ACT.  §  23 1 

the  car  struck  a  curve,  left  the  rails,  threw  Neumann 
under  the  wheels  of  the  car  and  caused  his  death. 

FINDINGS:  Neumann  had  been  instructed  and 
knowingly  and  intentionally  violated  the  rule.  Neu- 
mann did  not  intend  to  run  the  car  off  the  track  and 
did  not  intend  to  injure  himself.  At  the  time  of  the 
accident  Neumann  was  not  performing  service  grow- 
ing out  of  and  incidental  to  his  employment.  His 
death  was  proximately  caused  by  an  accident  due  to 
wilful  misconduct.  Martha  Neumann,  widow  of  de- 
ceased, is  not  entitled  to  compensation. 

MEMORANDUM  :  Robert  Neumann,  deceased,  was  a 
conductor  on  one  of  respondent's  cars.  On  the  night  of 
Feb.  9,  1912,  his  car  ran  "out"  to  the  end  of  his  run  and 
when  the  trolleys  were  changed  for  the  run  "in"  he  took 
the  motorman's  place  and  ran  the  car  for  some  distance 
until  it  reached  a  curve  in  the  track  where  the  car 
jumped  the  track,  threw  Neumann  under  the  wheels 
and  he  received  injuries  causing  his  immediate  death. 
His  widow  makes  claim  for  compensation. 

Neumann  had  worked  for  the  company  as  conductor 
some  six  months  prior  to  this  accident.  The  company 
instructs  its  conductors  when  they  are  first  put  to  work, 
by  placing  a  competent  man  on  the  car  with  them  for 
some  ten  days,  who  shows  the  beginner  how  to  per- 
form his  work.  Likewise  the  motormen  are  instructed 
for  a  period  of  fifteen  days.  A  conductor  is  not  compe- 
tent to  run  the  motor  until  he  receives  the  instructions 
given  motormen.  The  conductors  are  instructed  not 
to  run  the  motor  and  this  rule  of  the  company  is  strict- 
ly enforced,  and  in  all  cases  where  there  is  a  violation 
of  the  rule  coming  to  the  knowledge  of  the  company 
the  employe  so  violating  is  disciplined  by  being  laid  off 
without  pay  for  a  given  time.  The  rule  is  well  under- 
stood by  all  conductors.  Neumann  had  been  instructed 
in  the  rule.  There  is  a  rule  of  safety  necessary  for  the 
protection  of  the  company,  its  employes  and  the  public. 


§  232      WORKMEN'S  COMPENSATION  AND  INSURANCE.      608 

It  may  be  conceded  that  the  conductor  in  cases  of 
emergency  might  in  the  course  of  his  duties  be  required 
to  operate  the  motor.  No  such  emergency  is  shown  in 
this  case.  It  appears  that  the  deceased  violated  the 
rule  knowingly  and  knowing  that  he  was  doing  wrong 
in  so  doing.  He  did  not  intend  to  run  the  car  off  the 
car  off  the  track,  nor  did  he  intend  to  injure  himself. 
The  commission  is  of  the  opinion  that  under  these  cir- 
cumstances compensation  can  not  be  awarded.  We 
hold  that  the  deceased  was  in  the  employ  of  the  com- 
pany and  that  his  death  was  proximately  caused  by  ac- 
cident, but  at  the  time  of  the  accident  he  was  not  per- 
forming service  growing  out  of  or  incidental  to  his 
employment,  and  that  his  death  came  as  the  result  of 
wilful  misconduct  on  his  part. 

§  232.  Decisions  of  commission — Construction  of 
word  "support" — In  Pliska  v.  Hatton  Lumber  Com- 
pany7 the  commission  construes  the  word  "support". 
The  evidence  showed  that  on  February  15,  1912,  Peter 
Pliska,  son  of  the  applicant,  was  employed  by  respond- 
ent as  a  sawyer  in  the  woods  at  $30  per  month  and 
board.  While  engaged  in  this  occupation  he  was  killed 
by  reason  of  a  tree  falling  upon  him.  The  deceased  was 
about  twenty  years  of  age. 

AWARD:  That  respondent  pay  the  applicant  the 
present  worth  of  four  times  the  sum  of  $100  in  weekly 
installments  of  $10.58,  figured  at  3  per  cent,  interest 
compounded  annually,  to-wit,  the  sum  of  $397.62,  and 
the  sum  of  $5  for  medicines. 

MEMORANDUM  :  Applicant  in  this  case  is  a  farmer 
living  near  Stevens  Point.  He  has  a  farm  of  170  acres, 
with  about  90  acres  of  it  under  cultivation.  The  farm 
is  provided  with  the  necessary  machinery  and  live  stock. 
The  net  value  of  the  farm  and  other  property  over  and 
above  debts  and  liabilities,  exceeds  $7,500.  Applicant 

7  1  Bulletin  Wis.  Indus.  Com.  No.  3,  p.  95. 


609  WISCONSIN   ACT.  §  232 

has  seven  children  living,  ranging  in  ages  from  5  to  25 
years.  He  claims  compensation  for  the  death  of  his 
son,  who  while  in  the  employ  of  respondent  was  acci- 
dentally killed  by  a  tree  falling  upon  him.  At  the  time 
of  his  death  the  deceased  was  20  years  of  age,  and  had 
been  receiving  $30  a  month  and  board.  It  is  in  evi- 
dence that  his  board  was  worth  $16  a  month.  Deceased 
only  worked  for  the  respondent  about  three  or  four 
months  in  the  winter,  and  the  balance  of  the  year  he 
performed  services  for  applicant,  his  father,  on  the  farm. 
All  the  children,  with  the  exception  of  one  son,  were 
making  their  homes  with  applicant  and  working  on  the 
farm  and  contributing  their  earnings  to  applicant  for 
living  expenses  or  for  living  expenses  and  accumula- 
tion. It  appears  from  the  evidence  that  $550  is  the  fair 
average  annual  earning  of  deceased.  It  also  appears 
from  the  evidence  that  there  was  a  very  substantial  ac- 
cumulation of  property  by  the  applicant  in  the  year 
prior  to  the  death  of  the  deceased.  Applicant  was  un- 
able to  make  it  clear  to  the  commission  what  this 
amount  of  accumulation  or  increase  was  during  that 
year,  but  freely  admitted  that  it  was  quite  substantial, 
and  approximated  four  or  five  hundred  dollars.  Some 
of  this  was  earned  by  one  girl  over  21  years  of  age. 

The  law  provides  that  in  case  a  deceased  employe 
leaves  no  one  wholly  dependent  upon  him  for  support 
and  one  or  more  persons  partially  dependent  therefor, 
the  death  benefit  shall  be  such  percentage  of  four  times 
such  average  annual  earnings  of  the  employe  as  the 
average  amount  devoted  by  the  deceased  employe  to  the 
support  of  the  person  or  persons  so  partially  dependent 
upon  him  for  support  bears  to  such  average  annual 
earnings. 

"Support"  is  defined  to  mean  the  necessary  shelter, 
food,  clothes,  etc.,  to  meet  the  daily  necessities  of  the 
dependent,  and  it  is  to  be  determined  by  the  amount 

3g— BOYD  W  C 


§  232     WORKMEN'S  COMPENSATION  AND  INSURANCE.     610 

devoted  to  those  purposes  during  the  year  preceding 
the  death  of  the  employe. 

In  this  case  the  applicant  and  his  wife  have  become 
more  or  less  incapacitated  through  age  and  disease,  so 
that  it  clearly  appears  that  they  were  more  or  less  de- 
pendent upon  their  children  for  support.  In  other 
words,  without  the  aid  of  their  children  they  would  not 
have  been  able  to  have  managed  the  farm  and  provide 
for  their  support  in  their  customary  manner  of  living. 
So  we  conclude  that  the  deceased  did  contribute  a  por- 
tion of  his  earnings  for  the  support  of  applicant.  It  is 
difficult  to  determine  the  amount  contributed  to  the  ap- 
plicant for  support,  but  it  is  our  judgment  that  the  per- 
centage contributed  to  the  applicant  for  support  under 
the  statute  would  equal  $100  for  the  year  preceding  his 
death. 

The  award  will  therefore  go  to  the  applicant  for 
four  times  the  sum  of  $100  so  contributed  to  applicant 
for  his  support.  The  commission  is  of  the  opinion  that 
it  is  better  for  all  parties  concerned  that  the  amount 
be  paid  in  a  gross  sum,  and  therefore  the  award  pro- 
vides for  payment  in  gross  at  the  present  worth  of  $400 
payable  in  weekly  instalments  of  $10.58,  figuring  the 
same  at  3  per  cent,  which  amounts  to  $397.62. 

It  appears  that  respondent  has  paid  all  medical  bills 
with  the  exception  of  $5,  which  sum  was  paid  by  the 
applicant,  and  this  amount  is  added  to  the  awarft. 

§  233.  Decisions  of  commission — Construction  of 
"casual  employment"  and  time  of  serving  "notice" — In 

Brown  v.  City  of  Mauston8  it  appeared  that  on  Sept. 
26,  1911,  the  applicant  was  employed  by  the  respondent 
to  assist  in  unloading  iron  material  to  be  used  in  con- 
struction of  a  bridge  by  the  respondent.  While  en- 
gaged in  assisting  to  unload  this  material  from  a  wagon, 
an  iron  beam  fell  upon  the  ankle  of  the  applicant  and 

8  1  Bulletin  Wis.  Indus.  Com.  No.  3,  p.  97. 


6 1 1  WISCONSIN   ACT.  §  234 

bruised  the  same.  Applicant  went  home  and  did  not 
call  a  doctor  and  did  not  serve  notice  of  claim  for  com- 
pensation until  Jan.  19,  1912,  and  then  claimed  a  per- 
manent disability.  The  evidence  showed  a  total  dis- 
ability of  only  six  weeks. 

AWARD:  That  the  city  of  Mauston  pay  to  the  ap- 
plicant $33.14  as  compensation  for  the  six  weeks  of 
disability,  the  same  being  65  per  cent,  of  the  average 
weekly  wage  of  the  applicant. 

OPINION  :  The  city  sets  up  the  defense  of  casual  em- 
ployment; we  think  this  defense  is  not  available  to  a 
municipality,  but  only  available  to  private  employers. 
The  city  also  defends  on  the  ground  that  notice  of  claim 
was  not  served  within  thirty  days  after  the  accident. 
.  We  are  of  the  opinion  that  the  applicant  did  not  intend 
to  mislead  the  city  by  reason  of  his  failure  to  serve  no- 
tice and  that  the  city  was  not  in  fact  thereby  misled. 

§  234.  Decisions  of  commission — Meaning  of  "sup- 
port" "dependents" — In  Dougherty  v.  State  of  Wiscon- 
sin and  State  Board  of  Forestry9  it  was  shown  that  on 
Dec.  6,  1911,  John  W.  Dougherty,  employed  as  a  forest 
ranger  in  the  state  forestry  department,  met  with  an 
accident  causing  his  death.  His  salary  was  $75  per 
month  and  board. 

AWARD:  That  the  State  of  Wisconsin  pay  the  ap- 
plicant the  sum  of  $960  as  follows:  $62.50  on  July  1, 
1912,  and  $62.50  on  the  first  of  each  month  thereafter 
until  $960  shall  have  been  paid. 

MEMORANDUM:  The  applicant  is  the  mother  of  John 
W.  Dougherty,  deceased;  she  is  a  widow  and  has  no 
other  children.  Deceased  was  employed  in  the  state 
forestry  department,  and  while  so  employed,  on  Dec. 
6,  1911,  died  as  the  result  of  an  accident  received  in 
the  course  of  his  employment.  His  wages  at  the  time 
of  his  death  were  $75  a  month  and  board,  making  his 

» 1  Bulletin  Wls.  Indus.  Com.  No.  3,  p.  99. 


§  234      WORKMEN'S  COMPENSATION  AND  INSURANCE.      612 

annual  earnings  exceed  the  maximum  provided  in  the 
compensation  act. 

Applicant  resides  at  Minocqua,  in  this  state.  She 
has  five  cottages,  which  are  rented  mostly  to  people 
visiting  the  place  as  a  summer  resort.  During  the  year 
preceding  the  death  of  her  son  she  received  in  rental 
from  the  cottages  the  sum  of  $415;  her  disbursements 
were  $473.80,  of  which  amount  $174  or  thereabouts  was 
expended  for  permanent  improvements  on  the  cottages. 
Her  net  income  from  the  cottages  less  permanent  im- 
provements was  approximately  $115.  She  received  dur- 
ing the  year  preceding  the  accident  a  government  pen- 
sion of  $12  a  month.  Besides  the  cottages,  she  owned 
a  store  building,  the  second  floor  of  which  was  occu- 
pied as  her  dwelling;  she  conducted  a  store  on  the  first 
floor  for  the  sale  of  groceries  and  notions;  her  son  had 
a  two-thirds  interest  in  this  store. 

Applicant  claims  that  she  made  no  profit  from  the 
store,  and  we  have  no  evidence  to  show  that  she  did 
make  any  profit;  she  claims  that  it  cost  her  during  the 
year  for  support  approximately  $500.  We  think  that 
this  amount  is  reasonable  considering  her  mode  of  life. 
Her  son  contributed  to  the  joint  business  and  to  the 
support  of  his  mother  the  whole  of  his  salary  less  the 
amount  that  was  necessary  for  his  living  expenses.  It 
would  appear  therefore  that  the  amount  actually  con- 
tributed for  the  mother's  support  by  the  son  was  the 
difference  between  her  net  income  from  the  pension, 
$144,  and  from  rental,  $115,  a  total  of  $259,  and  the  sum 
of  $500  expended  by  her  for  support,  being  $241. 

Support  is  defined  to  mean  the  necessary  shelter, 
food,  clothes,  etc.,  to  meet  the  daily  necessities  of  the 
dependent,  and  it  is  to  be  determined  by  the  amount 
devoted  to  those  purposes  during  the  year  preceding 
his  death  by  the  son.  The  law  provides  that  in  case  the 
deceased  employe  leaves  no  one  wholly  dependent  on 
him  for  support,  but  one  or  more  persons  partially  de- 


613  WISCONSIN  ACT.  §235 

pendent  therefor,  the  death  benefit  shall  be  such  per- 
centage of  four  times  such  average  annual  earnings  of 
the  employe  as  the  average  amount  devoted  by  the  de- 
ceased employe  to  the  support  of  the  person  so  partial- 
ly dependent  upon  him  for  support  bears  to  such  aver- 
age annual  earnings. 

The  son's  contribution,  $241,  is  32  per  cent,  of  $750, 
the  employe's  average  annual  earnings  figured  at  the 
maximum  provided  by  law.  Four  times  employe's  aver- 
age annual  earnings  equals  $3,000  and  32  per  cent,  of 
$3,000  is  $960,  which  amount  is  awarded  to  Alvina 
Dougherty,  mother  of  deceased,  and  the  same  will  be 
payable  in  monthly  instalments  corresponding  in  amount 
to  the  monthly  wage  of  deceased  figured  at  the  maxi- 
mum provided  by  law,  until  the  full  amount  is  paid.  One- 
twelfth  of  $750  is  $62.50,  the  maximum  monthly  wage 
of  deceased  under  the  compensation  act.  The  first  pay- 
ment may  be  made  July  1,  next,  and  subsequent  pay- 
ments monthly,  on  the  first  day  of  each  month  there- 
after as  follows:  15  months  at  $62.50  and  1  month  at 
$22.50,  making  a  total  of  $960. 

§  235.  Procedure  under  the  act — Rules  of  practice : 
Rule  I.  Employers  coming  under  the  provisions  of 
Chapter  50,  Laws  of  Wisconsin,  1911,  shall  post  in  con- 
spicuous place  where  most  likely  to  be  seen  and  read  by 
their  employes  all  notices  required  to  be  posted  by  the 
Commission,  and  make  report  thereof  to  the  Commis- 
sion immediately  thereafter.  (Sec.  2394 — 29.)  See 
form  No.  6. 

Rule  II.  Employers  and  employes  coming  under 
the  provisions  of  Chapter  50,  Laws  of  1911,  and  phy- 
sicians attending  injured  employes  shall  make  report  to 
the  Industrial  Commission  of  all  accidents  for  which 
compensation  may  be  claimed,  on  the  8th  day  after  such 
accident,  and  a  second  report  thereon  on  the  29th  day 
after  such  accident,  such  reports  to  be  made  on  forms 


§  235      WORKMEN'S  COMPENSATION  AND  INSURANCE.      614 

provided  or  prescribed  by  the  Industrial  Commission. 
(See  forms  (e)  and  (f).) 

Rule  III.  In  any  case  where  an  accident  and  injury 
to  an  employe  occurs  of  which  the  Commission  has  juris- 
diction under  Chapter  50,  Laws  of  Wisconsin,  1911,  and 
compromise  of  liability  thereunder  is  made  directly  by 
such  employer  or  employe,  the  same  shall  be  made  in 
writing  in  the  presence  of  one  or  more  disinterested  wit- 
nesses, who  shall  sign  such  compromise  as  such  wit- 
nesses and  copies  of  all  such  compromises  shall  be  im- 
mediately mailed  to  the  Commission,  by  the  employer. 
All  compromises  may  be  reviewed,  set  aside,  modified 
or  confirmed  by  the  Commission  upon  application  of 
either  party  within  one  year  of  the  date  of  compromise. 
(Sec.  2394—15.) 

Rule  IV.  The  Commission  will  hold  public  sessions 
in  the  offices  of  the  Commission  in  Madison  on  the  first 
and  second  Tuesday  of  each  month  and  continuing  from 
day  to  day  until  all  matters  before  the  Commission  are 
heard.  The  Commission  may  from  time  to  time  hold 
public  sessions  in  other  places  in  the  state  as  the  con- 
venience of  the  parties  may  require.  The  offices  of  the 
Commission  at  Madison  shall  be  open  for  the  transac- 
tion of  business  during  office  hours  each  working  day. 
(Sec.  2394—14.) 

Rule  V.  Examiners  may  be  appointed  by  the  Com- 
mission from  time  to  time,  whose  duties  shall  be  to  aid 
the  Commission  in  making  settlements  between  employ- 
ers and  employes,  and  to  make  report  of  their  actions 
and  all  facts  in  relation  therewith  to  the  Commission. 
(Sec.  2394—14.) 

Rule  VI.  In  case  of  disputes  in  matters  coming 
under  the  jurisdiction  of  the  Commission,  either  party 
to  the  dispute  may  apply  to  the  Commission  for  relief 
and  the  Commission  shall  make  such  order  or  award  as 
shall  be  lawful  and  just  in  the  premises. 

In  all  such  cases  the  party  complaining  shall  file  his 


615  WISCONSIN   ACT.  §235 

application  with  the  Commission,  with  copies  to  be 
served  on  the  adverse  party.  The  Commission  shall 
thereupon  serve  such  adverse  party  with  a  copy  of  such 
application  and  such  adverse  party  shall  file  his  answer 
thereto  with  the  Commission  within  five  days  after  such 
service  and  likewise  serve  a  copy  of  such  answer  on  the 
party  making  the  application.  The  Commission  will 
thereupon  notify  the  parties  of  the  time  and  place  of 
hearing,  at  least  ten  days  prior  to  such  hearing.  (Sec. 
2394—16.) 

Rule  VII.  The  parties  to  the  controversy  shall  be 
known  as  the  applicant  and  the  respondent.  The  party 
filing  the  application  for  relief  shall  be  known  as  the  ap- 
plicant and  the  adverse  party  as  the  respondent.  Either 
party  may  appear  in  person  or  by  an  attorney  or  agent. 

Rule  VIII.  All  service  of  papers,  unless  otherwise 
directed  by  the  Commission  or  by  law  may  be  made  by 
mail  and  proof  of  such  mailing  shall  be  prima  facie  proof 
of  such  service.  Time  within  which  service  shall  be 
made  shall  be  the  same  as  in  courts  of  record  unless 
otherwise  specified  by  rule  or  order  of  the  Commission. 

Rule  IX.  Amendments  may  be  made  to  any  plead- 
ing, order,  or  award,  upon  application  to  the  Commis- 
sion and  cause  shown.  The  Commission  may  also 
amend  any  order  or  award  on  its  own  motion  upon  no- 
tice to  the  parties  interested. 

Rule  X.  The  Commission  may  grant  extensions  of 
time  in  which  to  comply  with  any  rule  when  it  shall 
deem  such  extensions  of  time  reasonable  and  it  may  like- 
wise grant  adjournments  of  hearings. 

Rule  XI.  Parties  to  a  controversy  may  stipulate 
the  facts  in  writing,  and  the  Commission  may  thereupon 
make  its  order  or  award  based  upon  such  stipulation. 

Rule  XII.  Depositions  may  be  taken  and  used  upon 
any  hearing  where  the  convenience  of  the  witnesses  or 
parties  may  so  require.  Such  depositions  shall  be  taken 
in  the  same  manner  as  in  courts  of  record. 


§  236     WORKMEN'S  COMPENSATION  AND  INSURANCE.      616 

§  236.  Circular  letter  to  employers  by  the  commis- 
sion in  explanation  of  its  rules  of  practice. — In  inaugu- 
rating its  plan  of  administration  the  commission  sent  to 
all  employers  a  copy  of  its  rules  of  practice  and  the 
forms  adopted  for  use  and  directed  that  the  employers 
indicate  their  acceptance  or  rejection  of  the  law.  It  was 
likewise  asked  that  the  employers  request  a  construction 
of  provisions  of  the  law  not  understood  by  them. 
Prompt  report  of  all  accidents  resulting  in  personal  in- 
juries was  demanded  and  attention  was  called  to  the 
penalties  provided  for  a  failure  to  make  such  reports. 

§  237.  Formal  procedure  under  Wisconsin  act. — 
The  Industrial  Commission  has  prescribed  certain  forms 
for  use  in  the  administration  of  the  act.  The  list  in- 
cludes forms  for  employers,  employes  and  casualty 
companies  and  for  use  at  hearing  before  the  Commis- 
sion, which  are  designated  as  follows: 

(a)  Form  of  employer's  written  acceptance; 

(b)  Form  of  employer's  notice  of  withdrawal; 

(c)  Form  of  notice  that  the  employer  has  filed  no- 
tice of  election  to  become  subject  to  provisions  of  act; 

(d)  Form  of  notice  by  employer  to  the  commis- 
sion of  compliance  with  law; 

(e)  Form  of  first  report  of  accident  by  employer; 

(f)  Form  of  supplementary  reports  on  accidents 
by  employer; 

(g)  Form  of  answer  to  application; 

(h)  Form  of  notice  by  employe  that  he  elects  to  be 
subject  to  provisions  of  act; 

(i)  Form  of  notice  of  employe  upon  entering  em- 
ployment that  he  elects  not  to  be  subject  to  act; 

(j)  Form  of  notice  to  employer  of  claim  for  injury 
under  act; 

(k)     Form  of  application  for  adjustment  of  claim; 

(1)     Form  of  accident  report  of  casualty  company; 

(m)     Form  of  notice  of  hearing; 


WISCONSIN    ACT.  §  238 

(n)     Form  of  subpoena; 

(o)     Form  of  admission  of  service; 

(p)  Form  of  notice  of  entry  of  findings  and  award 
made  by  commission. 

Copies  of  these  forms  are  set  out  in  the  following 
sections : 

§  238.    Form  of  employer's  written  acceptance :  (a) 

Industrial  Accident  Board, 

Madison,  Wis. 
Take  notice  that  the  undersigned  employer  of  labor  in  Wisconsin 

accepts   the   provisions  of  Chapter  50,  Laws  of  1911,  Wisconsin 

Statutes.io 

Number  of  employe's 

Location  of  place  of  employment 

Nature  of  employment 

Dated  at 

this day  of 

19 

By 


P.  O.  Address. 

§239.     Form   of  employer's  notice   of  withdrawal 
from  operation  of  act :  (b) 

Industrial  Accident  Board, 

Madison,  Wis. 

Take  notice  that  the  undersigned  employer  of  labor  In  Wisconsin 
hereby  withdraws  his  (her)  (its)  election  to  become  subject  to  the 
provisions  of  Chapter  50,  Laws  of  Wisconsin,  1911.H 

Dated    at 

this day   of 

19 

By 


P.  0.  Address. 


10  if  employer  wishes  to  accept  the  provisions  of  said  chapter 
this  notice  must  be  signed  by  the  employer  and  filed  with  the  In- 
dustrial Accident  Board.     When  so  filed  it  becomes   Immediately 
binding  on  the  employer.    If  employer  is  a  corporation  the  notice 
should  have  the  corporate  name  and  seal  affixed  and  be  signed  by 
an  officer  having  authority  so  to  do. 

11  This  notice  to  be  effective,  must  be  filed  In  the  office  of  the 
Board  at  least  sixty  days  prior  to  the  expiration  of  one  year  from 
the  filing  of  the  notice  of  acceptance,  or  sixty  days  prior  to  the 
expiration  of  any  succeeding  year. 


§  240      WORKMEN'S  COMPENSATION  AND  INSURANCE.      618 

§  240.     Form  of  notice  that  employer  has  filed  notice 
of  election  to  become  subject  to  provisions  of  act.  (c) 

To  all  employes  In  Wisconsin  of 

You  will  take  notice  that  your  employer  has  this  day  filed  with 
the  Industrial  Commission  of  Wisconsin  notice  of  election  to  be- 
come subject  to  the  provisions  of  Chap.  50,  Laws  of  Wisconsin,  1911. 

(This  Law  is  commonly  known  as  the  Workmen's  Compensa- 
tion Act.) 

You  are  further  notified  that  you  may  serve  notice  on  your 
employer  of  your  election  to  come  under  the  act  and  thereupon  the 
act  will  immediately  apply  to  you;  or 

You  may  within  30  days  of  this  date  serve  notice  on  your  em- 
ployer that  you  elect  not  to  come  under  the  act  in  which  case  the 
act  will  not  apply  to  you;  or 

You  may  not  serve  either  of  such  notices,  in  which  case  you  will 
come  under  the  act  at  the  expiration  of  30  days  from  this  date. 

Blank  forms  of  notices  will  be  furnished  free  upon  request  to 
the  Commission. 

Dated  at  the  office  of  the  Commission,  Madison,  Wis.,  this 

day  of ,  191__ 

§  241.     Form  of  notice  by  employer  to  the  commis- 
sion of  compliance  with  the  law.  (d) 

To  the  Industrial  Commission  of  Wisconsin : 

The  undersigned  employer  on  the day  of 

19 ,  complied  with  the  instructions  and  Rule  1  of  your  Commis- 
sion by  posting notices  (Form  (c))  of  your  Commission  in 

conspicuous  places  where  most  likely  to  be  seen  and  read  by 

employe's.1 2 

Dated  at ,  Wis., 

this day    of , 


(Signature  of  Employer.) 
By     

§  242.     Form  of  first  report  of  accident,  (e) 

File  No.  of  Employer 

(Do  not  fill  in) 
File  No.  of  Accident 

(Do  not  fill  in) 


12  Employer  will  fill  out  and  return  this  form  to  the  Industrial 
Commission  of  Wisconsin,  Madison,  Wis. 


6l9  WISCONSIN   ACT.  §  242 

Employer. 

(1)  Name    

(Individual  or  firm  name) 

(2)  Address    

(St.  No.)  (City  or  town) 

(3)  Subject  to  Chapter  50,  Laws  of  1911 (4)  Nature  of 

(Yes  or  no) 
business  or  industry 

(5)  Location  of  plant 

'  (City  or  town) 
Employe 

(6)  Name    

(7)  Address    

(St.  No.)  (City  or  town) 

(8)  Age (9)  Sex (10)  Married  or  single 

(11)  Nationality (12)  Understand  English 

(Yes  or  no) 

(13)  In  what  language  instructed  as  to  duties 

(14)  Physical  defect (15)  Was  injured  per- 

(Eye  or  ear  or  both) 

son  aware  of  danger (16)  Did  injured  person  make 

(Yes  or  no) 

proper  use  of  guards  or  safety  devices 

(Yes  or  no) 
(17)  Was  the  injury  due  to  wilful  misconduct  on  the  part  of  the 

employs (18)  How  long  did  injured  work  at  or 

(Yes  or  no) 

with  the  thing  which  caused  injury (19)  What  was  the 

occupation  of  the  person  injured 

(Have  in  mind  the  nature  of  the  work  done) 

(20)  Piece  or  Day  Worker 

(21)  Wages,  per  day per  week 

Time,  Place  and  Condition  of  Accident 

(22)  Date  of  Accident M. 

(Month)     (Day)     (Hour) 

(23)  Day  of  the  week (24)  Length  of  time  injured  had  been 

at  work  on  day  of  accident (25)  Near  window 

(Yes  or  no) 

(26)  Near  artificial  light 

(Yes  or  no) 

(27)  Condition  of  lighting 

(Good  or  poor) 

(28)  Workmen   congested 

(Yes  or  no) 

(29)  Floor   space   over-crowded 

(Yes  or  no) 


§  242      WORKMEN'S  COMPENSATION  AND  INSURANCE.      620 

Machine  or  Thing  Causing  Injury. 

(30)  What  was  it 

(31)  In  whose  control  at  the  time  of  the  accident 

(32)  Part  causing  the  accident 

(33)  Was  it  guarded  at  the  time  of  the  accident 

Information  furnished   by 

Position     

Date  of  Receipt 

(Do  not  fill  in) 

Date  of  Report 19___ 

(Month)     (Day) 

(34)  Describe  the  guard  or  safety  device 

(35)  How  did  the  accident  occur 

(36)  What  would  you  suggest  to  prevent  similar  accidents 

Care  of  Injnred. 

(37)  Kind  of  medical  and  surgical  attention  given  since  the  accident 
occurred    

Nature  and  Extent  of  Injury. 

(38)  Was  accident  fatal 

(Yes  or  no)     (State  fully  the  nature  and  extent  of  injury) 

(39)  Probable  period  of  disability 

(Report  in  days) 

(40)  Attending  physicians. 

(Name)  (Address) 

(41)  Dependents. 

(Name)  (Age)  (Relationship)  (Address) 

Additional  Data. 

(42)  Remarks    «._..__.....__.———— 


621  WISCONSIN    ACT.  §  243 

§  243.     Form    of   supplementary    reports    on   acci- 
dents. (f)13 

Employer's    name 

Date ,  19 

Employer's    address • 

(Street  and  number)     (City  or  town) 

Name  of  injured  employe 

Address  of  injured  employe 

(Street  and  number)     (City  or  town) 

(1)  Date    of    accident 

(2)  Has  injured  person  returned  to  work 

(Yes  or  no) 

(3)  On  what  date (4)  At  what  wages  per  day 

(5)  At  what  occupation (6)  Medical  relief  that  has 

been  given  injured  person  since  your  first  report 

(7)  Payments  made  to  compensate  for  injury 

(Amount) 

For  period to  ,  inclusive. 

(Date)  (Date) 

Payments  made  to  compensate  for  injury 

(Amount) 

For  period to  ,  inclusive. 

(Date)  (Date) 

Payments  made  to  compensate  for  injury 

(Amount) 

For  period to  ,  inclusive. 

(Date)  (Date) 

(8)  If  settlement  is  completed  please  give  the  total  payment  $ 

(Amount) 

and  the  period  to  which  this  applies 

(Date) 

to (9)  Please  file  with  the  Commission 

(Date,  inclusive.) 
copies  of  all  agreements  of  settlement  with  employe. 

(10)  Remarks    

(11)  Information   furnished  by 

Position  _      


13  This  form  has  been  substituted  for  form  (f)  (Second  Report 
of  Accident).  All  employers  under  the  Workmen's  Compensation  Act 
are  required,  in  all  cases  where  disability  continues  for  more  than 

seven  days: 

First:  To  mail  to  the  Industrial  Commission  of  Wisconsin,  Mad- 
ison, Wis.,  on  this  form  properly  filled  out,  a  Final  Report  when 
disability  ceases. 

Second:     To  mail  to  the  said  Commission  on  this  form  propel 
filled  out,  a  report  at  the  end  of  each  Fourth  week  during  disability. 


§  244     WORKMEN'S  COMPENSATION  AND  INSURANCE.      622 

§  244.     Form  of  answer  to  application,     (g)14 

Applicant, 

vs. 

Respondent. 

The  respondent  above  named  for  answer  to  the  application  here- 
in respectfully  shows: 

1.  (State  all  facts  in  application  that  are  admitted  not  to  be  in 
•  dispute.) 


2.     (State  pertinent  facts  in  reply  to  application,  that  are  in 
dispute.) 


3.    State  such  additional  facts  as  may  constitute  a  defense  or 
partial  defense, 


4.     Wherefor  the  respondent  prays  (stating  relief  asked), 
(Signed) __ 


(Respondent.) 

§  245.     Form  of  notice  by  employe  that  he  elects  to 
be  subject  to  provisions  of  act.  (h) 

To    

(Write  name  of  employer  plainly  on  above  line.) 

(Write  address  of  employer  plainly  on  above  line.) 
Take  notice  that  as  your  employe,  I  hereby  elect  to  become  sub- 
ject to  the  provisions  of  Chap.  50,  Laws  of  Wisconsin,  1911.!5 


14  The  respondent  shall  answer  the  application  within  five  days 
from  the  date  that  a  copy  of  the  application  is  served  upon  him. 

The  original  answer  shall  be  mailed  to  the  Industrial  Accident 
Board  at  Madison,  Wis.,  and  a  copy  thereof  served  upon  the  appli- 
cant by  respondent  either  personally  or  by  mailing  to  the  address 
given  in  the  application. 

!5  If  employer  elects  to  become  subject  to  Chap.  50,  Laws  1911, 
employe's  then  in  service  may  immediately  serve  above  notice  upon 
employer  and  thereupon  likewise  become  subject  to  Chap.  50,  Laws 
1911. 

Unless  the  employe  gives  notice  to  the  contrary  and  without 
giving  above  notice,  he  will  become  subject  to  Chap.  50,  Laws  1911, 
by  remaining  in  such  employ  30  days  after  the  filing  of  such  accep- 
tance by  employer. 


623  WISCONSIN   ACT.  §  246 

Dated  at  t 

this day  of ,  191__ 

(Employe)     

(Address)    __. 


§  246.     Form  of  notice  of  employe  upon  entering 
employment  that  he  elects  not  to  be  subject  to  act.  (i) 

To 

(Write  name  of  employer  plainly  on  above  line.) 

(Write  address  of  employer  plainly  on  above  line.) 
You  will  take  notice  that  being  about  to  enter  your  employ,  I 
elect  not  to  be  subject  to  the  provisions  of  Chap.  50,  Laws  of  Wis- 
consin, 1911.16 

(Employe)  

(Address)    

Dated   at   

this day  of ,  191__ 

§  247.     Form  of  notice  to  employer  of  claim  for  in- 
jury under  act.     (j)17 

To    

(Write  name  of  employer  plainly  on  above  line.) 

(Write  address  of  employer  plainly  on  above  line.) 
You  will  take  notice  that  according  to  the  provisions  of  Chap.  50, 

Laws  of  Wisconsin,  1911 

hereby  makes  claim  for  compensation  for  injury 

received  by while  in  your  employ. 

Name    of    employe 

Post  Office  Address 

The  accident  occurred  the day  of ,  191 — 

at ,  Wisconsin. 


i«  If  employer  has  elected  to  become  subject  to  provisions  of  the 
act,  then  upon  entering  the  service  the  employe  comes  under  the 
act  likewise  unless  he  gives  the  employer  the  above  notice  at  the 
time  he  enters  such  service. 

17  This  notice  should  be  filled  out  by  injured  employe  or  some  one 
in  his  behalf.  In  case  of  death  of  employe  notice  is  to  be  filled  out 
by  dependent.  Notice  should  be  served  within  30  days  of  accident 
on  employer  by  delivering  a  copy  of  the  above  notice  to  employer 
personally  or  by  registered  mail. 

Fill  out  in  duplicate.  Hand  or  mail  one  copy  to  employer,  mail 
the  other  copy  to  the  Industrial  Accident  Board,  Madison,  Wis. 


§  248      WORKMEN'S  COMPENSATION  AND  INSURANCE.      624 

The  nature  of  the  injury  is  as  follows: 


Signature 
Address    _ 

Dated  at  

this day  of 


§  248.     Form  of  application  for  adjustment  of  claim. 
(k) 

State  of  Wisconsin. 

Applicant, 

vs. 

. Respondent. 

Respondent. 

The  petition  of  the  above  named  applicant  respectfully  shows: 

1.  State  address  of  applicant, 

2.  State  occupation  of  applicant, 

3.  State  address  of  respondent  (s), 


4.  State    general    nature    of    claim    in    controversy,    including    time 
and  place  of  accident, 


5.  State  kind  of  relief  demanded, 


6.  Wherefore  the  applicant  prays  that  the  said  respondent  be  re- 
quired to  answer  the  charges  herein  and  that  an  order  or  award  be 
made  by  the  Industrial  Accident  Board  granting  such  relief  as  the 
applicant  may  be  entitled  to  in  the  premises.^ 

Dated  at ,   this 

day  of ,  191__ 

(Signed) 

(Applicant.) 


is  Either  party  to  the  dispute  may  apply  to  the  Board  for  an 
adjustment  of  the  matter  in  difference.  The  original  application 
and  one  copy  for  each  respondent  shall  be  mailed  to  the  Industrial 
Accident  Board,  Madison,  Wis. 


WISCONSIN   ACT.  §  249 

§249.     Form  of  accident  report  of  casualty  com- 
pany. (1) 

(Give  name  of  Insurance  Company) 

To 

INDUSTRIAL  COMMISSION  OF  WISCONSIN 
(Successor  to  Industrial  Accident  Board) 

MADISON,  WISCONSIN, 

Report  only  those  accidents  where  the  probable  period  of  disability 
as  reported  by  the  employer  is  more  than  seven  days. 

1.  Name   of   employer 

2.  Address  of  employer 

(St.  No.)  (City  or  Town) 

3.  Name  of  injured  person 

4.  Address  of  injured  person 

(St.  No.)  (City  or  Town) 

5.  At  what  place  working 

(St.  No.)  (City  or  Town) 

6.  Date  of  accident 191_ 

(Month)     (Day) 

7.  Probable  period  of  disability 

8.  What  machine  or  thing  caused  the  injury 

9.  Cause  of  accident „, 

§  250.     Form  of  notice  of  hearing,     (m)19 

Applicant, 

vs. 
Respondent. 

To  the  parties  above  named  and  to  each  of  them. 

Notice  is  hereby  given  that  on  the day  of - 

191 — ,  at  ten  o'clock  in  the  forenoon  or  as  soon  thereafter  as  the 
matter  can  be  heard  at 

a  hearing  on  the  application  in  such  matter  will  be  had  by  the 
Board  to  determine  and  adjust  the  difference  in  dispute  as  set  forth 
in  the  application  on  file. 

The  general  nature  of  the  claims  is  as  follows: 


Dated  at  Madison,  Wis.,  this day  of 191. 

INDUSTRIAL  ACCIDENT  BOARD, 
By 

Secretary. 


is  Parties  may  appear  at  any  hearing  personally  or  by  agent  or 
attorney. 

40— BOYD  w  c 


§  251      WORKMEN'S  COMPENSATION  AND  INSURANCE.      626 
§251.     Form  of  subpoena:  (n) 

STATE  OF  WISCONSIN,  ) 

)ss: 
County  of ) 

State  of  Wisconsin  to__ 


You  are  hereby  required  to  appear  before  the  Industrial  Acci- 
dent Board  of  Wisconsin  at  the  city  of ,  county  of 

at at o'clock  in  the 

noon  to  give  evidence  in  a  certain  proceeding  pending  before  said 

Board  wherein is  Applicant,  and 

is  Respondent. 

Hereof  fail  not  at  your  peril. 

Given  under  our  hands  this day  of 

A.  D.  19__ 

INDUSTRIAL  ACCIDENT  BOARD  OF  WISCONSIN, 
By    Member  of  Board. 

§  252.     Form  of  admission  of  service,  (o) 

Admission  of  service  of 

in  re  

Applicant,   vs.    

Respondent,  is  hereby  admitted  at 

Wisconsin,  this day  of ,  19 


§  253.     Form  of  notice  of  the  entry  of  findings  and 
award  made  by  the  commissioners,  (p) 
In  the  Matter  of 

,    Applicant, 

vs. 

,  Respondent. 

State  of  Wisconsin,    ) 

)ss: 
County  of  Dane.         ) 

I,  P.  J.  Watrous,  Secretary  of  the  Industrial  Commission  of  Wis- 
consin, hereby  certify  that  I  have  compared  the  attached  copy  of 
Findings  and  Award,  with  the  original  Findings  and  Award  of  the 
Industrial  Commission  of  Wisconsin,  made  in  the  above  entitled 
matter  and  filed  in  the  office  of  said  Industrial  Commission  of  Wis- 
consin, in  the  Capitol  in  the  City  of  Madison,  Wisconsin,  on  the 

day  of ,  191—,  and  that  the  same  is  a  true  copy 

thereof. 

Dated  at  the  City  of  Madison,  Wis., 

this day  of ,  19— 

(Seal)  Secretary. 

INDUSTRIAL  COMMISSION  OF  WISCONSIN. 


CHAPTER  XIII. 

NEW   JERSEY   COMPENSATION  ACT. 

Sec.  Sec. 

254.  Nature  and  scope  of  act.  dents  to  be  made  to  the 

255.  Text  of  New  Jersey  work-  Department  of  Labor. 

men's  compensation  act.        259.  Construction    of    act    and 

256.  Text  of  supplementary  act  procedure   thereunder. 

saving  existing  contracts.       260.  Form  of  accident  blank  for 

257.  Text    of    act    creating    the  report  by  employer. 

employer's    liability   com-      261.  Form   of   report  by   insur- 
mission.  ance  company  to  commis- 

258.  Text    of    act    requiring    re-  sioner  of  Labor   on   acci- 

ports    of   industrial    accl-  dent     and     compensation 

paid. 

§  254.  Nature  and  scope  of  act. — The  New  Jersey 
act  is  divided  into  two  sections — compensations  by 
action  at  law  and  elective  compensation.  The  act  permits 
an  election  by  either  of  the  parties  and  allows  a  term- 
ination of  the  agreement  after  election  on  sixty  days 
notice  in  writing  prior  to  any  accident.  Where  the  elec- 
tion is  made  the  elective  compensation  is  to  be  paid  in 
case  of  injury  or  death  without  regard  to  the  negligence 
of  the  employer  unless  the  injury  or  death  is  intention- 
ally self-inflicted  or  is  due  to  the  intoxication  of  the  em- 
ploye. Whether  the  injury  or  death  is  due  to  these  lat- 
ter causes  is  a  question  of  fact  for  the  jury  and  to  be 
established  by  the  employer.  The  common-law  de- 
fenses of  fellow  servant,  contributory  negligence  and 
assumption  of  risk  are  abolished.  All  employments  ex- 
cept casual  are  covered  by  the  act  and  the  employer  is 
held  directly  liable  to  pay  the  compensations  as  pro- 
vided in  the  law.  Compensation  begins  two  weeks  after 
the  accident,  but  the  expenses  of  medical  and  surgical 
aid  not  to  exceed  $100  during  the  first  two  weeks  after 
the  injury  is  received.  The  act  as  it  now  stands  works 

627 


§  255      WORKMEN'S  COMPENSATION  AND  INSURANCE.      628 

automatically  without  the  intervention  of  commissions 
and  boards  of  award.1 

Note  by  Commissioner  of  Labor — This  act  automatically  places 
every  contract  of  employment  under  the  compensation  section,  but 
'permits  either  party  to  elect  not  to  be  subject  to  its  provisions,  to 
have  recourse  to  action  at  law  for  compensation. 

§  255.  Text  of  New  Jersey  workmen's  compensation 
act. — The  act  is  entitled  an  act  prescribing  the  liability 
of  an  employer  to  make  compensation  for  injuries  re- 
ceived by  an  employe  in  the  course  of  employment, 
establishing  an  elective  schedule  of  compensation,  and 
regulating  procedure  for  the  determination  of  liability 
and  compensation  thereunder.  It  became  effective  July 
4,  1911.  It  provides: 

SECTION  I.    COMPENSATION  BY  ACTION  AT  LAW. 

1.  When  personal  injury  is  caused  to  an  employe  by 
accident  arising  out  of  and  in  the  course  of  his  employ- 
ment, of  which  the  actual  or  lawfully  imputed  negli- 
gence of  the  employer  is  the  natural  and  proximate 
cause,  he  shall  receive  compensation  therefor  from  his 
employer,  provided  the  employe  was  himself  not  wil- 
fully negligent  at  the  time  of  receiving  such  injury,  and 
the  question  of  whether  the  employe  was  wilfully  negli- 
gent shall  be  one  of  fact  to  be  submitted  to  the  jury,  sub- 
ject to  the  usual  superintending  powers  of  a  court  to  set 
aside  a  verdict  rendered  contrary  to  the  evidence. 

2.  The  right  to  compensation  as  provided  by  section 
I  of  this  act  shall  not  be  defeated  upon  the  ground  that 
the  injury  was  caused  in  any  degree  by  the  negligence 
of  a  fellow  employe;  or  that  the  injured  employe  as- 
sumed the  risks  inherent  in  or  incidental  to  or  arising 
out  of  his  employment  or  arising  from  the  failure  of  the 

iThe  act  has  not  been  construed  by  the  Supreme  Court  at  the 
time  this  is  written.  It  has  been  upheld  in  the  court  of  Common 
Pleas  of  Essex  county  in  a  most  instructive  opinion  by  Justice 
Martin  in  the  case  of  Sexton  v.  Newark  Dist.  Tel.  Co.  reported  in 
34  N.  J.  Law  Journal,  p.  368,  and  35  N.  J.  Law  Journal,  p.  8. 


629  NEW   JERSEY   ACT.  §  255 

employer  to  provide  and  maintain  safe  premises  and 
suitable  appliances;  which  said  grounds  of  defense  are 
hereby  abolished. 

3.  If  an  employer  enters  into  a  contract,  written  or 
verbal,  with  an  independent  contractor  to  do  part  of 
such  employer's  work,  or  if  such  contractor  enters  into 
a  contract,  written  or  verbal,  with  a  subcontractor  to  do 
all  or  any  part  of  such  work  comprised  in  such  con- 
tractor's contract  with  the  employer,  such  contract  or 
subcontract  shall  not  bar  the  liability  of  the  employer 
under  this  act  for  injury  caused  to  an  employe  of  such 
contractor  or  subcontractor  by  any  defect  in  the  condi- 
tion of  the  ways,  works,  machinery  or  plant  if  the  defect 
arose  or  had  not  been  discovered  and  remedied  through 
the  negligence  of  the  employer  or  some  one  entrusted 
by  him  with  the  duty  of  seing  that  they  were  in  proper 
condition.     This  paragraph  shall  apply  only  to  actions 
arising  under  section  one. 

4.  The  provisions  of  paragraphs  one,  two  and  three 
shall  apply  to  any  claim  for  the  death  of  an  employe 
arising  under  an  act  entitled  "An  act  to  provide  for  the 
recovery  of  damages  in  cases  where  the  death  of  a 
person  is  caused  by  wrongful  act,  neglect  or  default," 
approved   March   third,    eighteen   hundred   and   forty- 
eight,  and  the  amendments  thereof  and  supplements 
thereto. 

5.  In  all  actions  at  law  brought  pursuant  to  section  I 
of  this  act,  the  burden  of  proof  to  establish  wilful  negli- 
gence in  the  injured  employe  shall  be  upon  the  defend- 
ant. 

6.  No  claim  for  legal  services  or  disbursements  per- 
taining to  any  demand  made  or  suit  brought  under  the 
provisions  of  this  act  shall  be  an  enforceable  lien  against 
the  amount  paid  as  compensation,  unless  the  same  be 
approved  in  writing  by  the  judge  or  justice  presiding 
at  the  trial,  or  in  case  of  settlement  without  trial,  by 
the  judge  of  the  circuit  court  of  the  district  in  which 


§  255      WORKMEN'S  COMPENSATION  AND  INSURANCE.      630 

such  issue  arose;  provided,  that  if  notice  in  writing  be 
given  the  defendant  of  such  claim  for  legal  services  or 
disbursements,  the  same  shall  be  a  lien  against  the 
amount  paid  as  compensation,  subject  to  determination 
of  the  amount  and  approval  hereinbefore  provided. 

SECTION  II.    ELECTIVE  COMPENSATION. 

7.  When  employer  and  employe  shall  by  agreement, 
either  express  or  implied,  as  hereinafter  provided,  accept 
the  provisions  of  section  II  of  this  act,  compensation 
for  personal  injuries  to  or  for  the  death  of  such  employe 
by  accident  arising  out  of  and  in  the  course  of  his  em- 
ployment shall  be  made  by  the  employer  without  regard 
to  the  negligence   of  the  employer,   according  to  the 
schedule   contained   in  paragraph   eleven,   in   all   cases 
except  when  the  injury  or  death  is  intentionally  self- 
inflicted,  or  when  intoxication  is  the  natural  and  proxi- 
mate cause  of  injury,  and  the  burden  of  proof  of  such 
fact  shall  be  upon  the  employer. 

8.  Such  agreement  shall  be  a  surrender  by  the  par- 
ties thereto  of  their  rights  to  any  other  method,  form 
or  amount  of  compensation  or  determination  thereof 
than  as  provided  in  section  II  of  this  act,  and  an  accept- 
ance of  all  the  provisions  of  section  II  of  this  act,  and 
shall  bind  the  employe  himself  and  for  compensation 
for  his  death  shall  bind  his  personal  representatives, 
his  widow  and  next  of  kin,  as  well  as  the  employer,  and 
those  conducting  his  business  during  bankruptcy  or  in- 
solvency. 

9.  Every  contract  of  hiring  made  subsequent  to  the 
time  provided  for  this  act  to  take  effect  shall  be  pre- 
sumed to  have  been  made  with  reference  to  the  pro- 
visions of  section  II  of  this  act,  and  unless  there  be 
as  a  part  of  such  contract  an  express  statement  in 
writing,  prior  to  any  accident,  either  in  the  contract 
itself  or  by  written  notice  from  either  party  to  the  other, 
that  the  provisions  of  section  II  of  this  act  are  not  in- 


631  NEW   JERSEY  ACT.  §  255 

tended  to  apply,  then  it  shall  be  presumed  that  the 
parties  have  accepted  the  provisions  of  section  II  of  this 
act  and  have  agreed  to  be  bound  thereby.  In  the  em- 
ployment of  minors,  section  II  shall  be  presumed  to  ap- 
ply unless  the  notice  be  given  by  or  to  the  parent  or 
guardian  of  the  minor. 

10.  The  contract  for  the  operation  of  the  provisions 
of  section  II  of  this  act  may  be  terminated  by  either 
party  upon  sixty  days'  notice  in  writing  prior  to  any 
accident. 

11.  Following  is  the  schedule  of  compensation: 

(a)  For  injury  producing  temporary  disability,  fifty 
per  centum  of  the  wages  received  at  the  time  of  injury, 
subject  to  a  maximum  compensation  of  ten  dollars  per 
week  and  a  minimum  of  five  dollars  per  week;  provided, 
that  if  at  the  time  of  injury  the  employe  receives  wages 
of  less  than  five  dollars  per  week,  then  he  shall  receive 
the  full  amount  of  such  wages  per  week.     This  com- 
pensation shall  be  paid  during  the  period  of  such  dis- 
ability, not,  however,  beyond  three  hundred  weeks. 

(b)  For  disability  total  in  character  and  permanent 
in  quality,  fifty  per  centum  of  the  wages  received  at  the 
time  of  injury,  subject  to  a  maximum  compensation  of 
ten  dollars  per  week  and  a  minimum  of  five  dollars  per 
week;  provided,  that  if  at  the  time  of  injury  the  employe 
receives  wages  of  less  than  five  dollars  per  week,  then 
he  shall  receive  the  full  amount  of  wages  per  week.  This 
compensation  shall  be  paid  during  the  period  of  such  dis- 
ability, not,  however,  beyond  four  hundred  weeks. 

(c)  For  disability  partial  in  character  but  permanent 
in  quality,  the  compensation  shall  be  based  upon  the 
extent  of  such  disability.     In  cases  included  by  the  fol- 
lowing schedule  the  compensation  shall  be  that  named 
in  the  schedule,  to  wit : 

For  the  loss  of  a  thumb,  fifty  per  centum  of  daily 
wages  during  sixty  weeks. 

For  the  loss  of  a  first  finger,  commonly  called  index 


§  255      WORKMEN'S  COMPENSATION  AND  INSURANCE.      632 

finger,  fifty  per  centum  of  daily  wages  during  thirty-five 
weeks. 

For  the  loss  of  a  second  finger,  fifty  per  centum  of 
daily  wages  during  thirty  weeks. 

For  the  loss  of  a  third  finger,  fifty  per  centum  of 
daily  wages  during  twenty  weeks. 

For  the  loss  of  a  fourth  finger,  commonly  called  little 
finger,  fifty  per  centum  of  daily  wages  during  fifteen 
weeks. 

The  loss  of  the  first  phalange  of  the  thumb,  or  of  any 
finger,  shall  be  considered  to  be  equal  to  the  loss  of  one- 
half  of  such  thumb,  or  finger,  and  compensation  shall 
be  one-half  the  amounts  above  specified. 

The  loss  of  more  than  one  phalange  shall  be  con- 
sidered as  the  loss  of  the  entire  finger  or  thumb;  pro- 
viding, however,  that  in  no  case  shall  the  amount  re- 
ceived for  more  than  one  finger  exceed  the  amount  pro- 
vided in  this  schedule  for  the  loss  of  a  hand. 

For  the  loss  of  a  great  toe,  fifty  per  centum  of  daily 
wages  during  thirty  weeks. 

For  the  loss  of  one  of  the  toes  other  than  a  great 
toe,  fifty  per  centum  of  daily  wages  during  ten  weeks. 

For  the  loss  of  the  first  phalange  of  any  toe  shall  be 
considered  to  be  equal  to  the  loss  of  one-half  of  such 
toe,  and  compensation  shall  be  one-half  of  the  amount 
above  specified. 

The  loss  of  more  than  one  phalange  shall  be  con- 
sidered as  the  loss  of  the  entire  toe. 

For  the  loss  of  a  hand,  fifty  per  centum  of  daily  wages 
during  one  hundred  and  fifty  weeks. 

For  the  loss  of  an  arm,  fifty  per  centum  of  daily 
wages  during  two  hundred  weeks. 

For  the  loss  of  a  foot,  fifty  per  centum  of  daily  wages 
during  one  hundred  and  twenty-five  weeks. 

For  the  loss  of  a  leg,  fifty  per  centum  of  daily  wages 
during  one  hundred  and  seventy-five  weeks. 


633  NEW  JERSEY  ACT.  §  255 

For  the  loss  of  an  eye,  fifty  per  centum  of  daily 
wages  during  one  hundred  weeks. 

The  loss  of  both  hands,  or  both  arms,  or  both  feet, 
or  both  legs,  or  both  eyes,  or  of  any  two  thereof,  shall 
constitute  total  and  permanent  disability,  to  be  compen- 
sated according  to  the  provisions  of  clause  (b). 

In  all  other  cases  in  this  class  the  compensation  shall 
bear  such  relation  to  the  amounts  stated  in  the  above 
schedule  as  the  disabilities  bear  to  those  produced  by  the 
injuries  named  in  the  schedule.  Should  the  employer 
and  employe  be  unable  to  agree  upon  the  amount  of 
compensation  to  be  paid  in  cases  not  covered  by  the 
schedule,  the  amount  of  compensation  shall  be  settled 
according  to  the  provisions  of  paragraph  twenty  hereof. 

The  amounts  specified  in  this  clause  are  all  subject  to 
the  same  limitations  as  to  maximum  and  minimum  as 
are  stated  in  clause  (a). 

12.  In  case  of  death  compensation  shall  be  computed 
but  not  distributed  on  the  following  basis : 

(1)  Actual  dependents. 

If  orphan  or  orphans,  a  minimum  of  twenty-five  per 
centum  of  wages  of  deceased,  with  ten  per  centum  ad- 
ditional for  each  orphan  in  excess  of  two,  with  a  maxi- 
mum of  sixty  per  centum. 

If  widow  alone,  twenty-five  per  centum  of  wages. 

If  widow  and  one  child,  forty  per  centum  of  wages. 

If  widow  and  two  children,  forty-five  per  centum  of 
wages. 

If  widow  and  three  children,  fifty  per  centum  of 
wages. 

If  widow  and  four  children,  fifty-five  per  centum  of 
wages. 

If  widow  and  five  children  or  more,  sixty  per  centum 
of  wages. 

If  widow  and  father  or  mother,  fifty  per  centum  of 
wages. 

If  grandparents,  grandchildren,  or  minor,  or  incapaci- 


§  255      WORKMEN'S  COMPENSATION  AND  INSURANCE.      634 

tated  brothers  or  sisters,  twenty-five  per  centum  of 
wages. 

Compensation  in  case  of  death  shall  be  computed  on 
the  basis  of  the  foregoing  schedule,  but  shall  be  dis- 
tributed according  to  the  laws  of  this  State  providing 
for  the  distribution  of  the  personal  property  of  an  intes- 
tate decedent,  unless  decedent  has  in  fact  left  a  will. 

(2)   No  dependents. 

Expenses  of  last  sickness  and  burial  not  exceeding 
two  hundred  dollars. 

In  computing  compensation  to  orphans  or  other  chil- 
dren, only  those  under  sixteen  years  of  age  shall  be  in- 
cluded, and  only  during  the  period  in  which  they  are 
under  that  age,  at  which  time  payment  on  account  of 
such  child  shall  cease. 

The  compensation  in  case  of  death  shall  be  subject 
to  a  maximum  compensation  of  ten  dollars  per  week  and 
a  minimum  of  five  dollars  per  week;  provided,  that  if  at 
the  time  of  injury  the  employe  receives  wages  of  less 
than  five  dollars  per  week,  then  the  compensation  shall 
be  the  full  amount  of  such  wages  per  week.  This  com- 
pensation shall  be  paid  during  three  hundred  weeks. 

Compensation  under  this  schedule  shall  not  apply  to 
alien  dependents  not  residents  of  the  United  States. 

13.  No  compensation  shall  be  allowed  for  the  first 
two  weeks  after  injury  received,  except  as  provided  by 
paragraph  fourteen,  nor  in  any  case  unless  the  employer 
has  actual  knowledge  of  the  injury  or  is  notified  thereof 
within  the  period  specified  in  paragraph  fifteen. 

14.  During  the  first  two  weeks  after  the  injury  the 
employer  shall  furnish  reasonable  medical  and  hospital 
services  and  medicines,  as  and  when  needed,  not  to  ex- 
ceed one  hundred  dollars  in  value,  unless  the  employe 
refuses  to  allow  them  to  be  furnished  by  the  employer. 

15.  Unless  the  employer  shall  have  actual  knowledge 
of  the  occurrence  of  the  injury,  or  unless  the  employe, 
or  some  one  on  his  behalf,  or  some  of  the  dependents, 


635  NEW   JERSEY   ACT.  §  255 

or  some  one  on  their  behalf,  shall  give  notice  thereof 
to  the  employer  within  fourteen  days  of  the  occurrence 
of  the  injury,  then  no  compensation  shall  be  due  until 
such  notice  is  given  or  knowledge  obtained.  If  the 
notice  is  given,  or  the  knowledge  obtained  within  thirty 
days  from  the  occurrence  of  the  injury,  no  want,  failure, 
or  inaccuracy  of  a  notice  shall  be  a  bar  to  obtaining  com- 
pensation, unless  the  employer  shall  show  that  he  was 
prejudiced  by  such  want,  defect  or  inaccuracy,  and  then 
only  to  the  extent  of  such  prejudice.  If  the  notice  is 
given,  or  the  knowledge  obtained  within  ninety  days, 
and  if  the  employe,  or  other  beneficiary,  shall  show  that 
his  failure  to  give  prior  notice  was  due  to  his  mistake, 
inadvertence,  ignorance  of  fact  or  law,  or  inability,  or  to 
the  fraud,  misrepresentation  or  deceit  of  another  person, 
or  to  any  other  reasonable  cause  or  excuse,  then  com- 
pensation may  be  allowed,  unless,  and  then  to  the  ex- 
tent only  that  the  employer  shall  show  that  he  was 
prejudiced  by  failure  to  receive  such  notice.  Unless 
knowledge  be  obtained,  or  notice  given,  within  ninety 
days  after  the  occurrence  of  the  injury,  no  compensation 
shall  be  allowed. 

16.  The  notice  referred  to  may  be  served  personally 
upon  the  employer,  or  upon  any  agent  of  the  employer 
upon  whom  a  summons  may  be  served  in  a  civil  action, 
or  by  sending  it  through  the  mail  to  the  employer  at 
the  last  known  residence  or  business  place  thereof  with- 
in the  State,  and  shall  be  substantially  in  the  following 
form: 

To  (name  of  employer) : 

You  are  hereby  notified  that  a  personal  injury  was  received 
by  (name  of  employe  injured),  who  was  in  your  employ  at 
(place)  while  engaged  as  (nature  of  employment),  on  or  about 
tne  (  )  day  of  (  )»  nineteen  hundred  and 

(  ),  and  that  compensation  will  be  claimed  therefor. 

Signed, 

(  >• 

But  no  variation  from  this  form  shall  be  material  if 


§  255      WORKMEN'S  COMPENSATION  AND  INSURANCE.      636 

the  notice  is  sufficient  to  advise  the  employer  that  a  cer- 
tain employe,  by  name,  received  an  injury  in  the  course 
of  his  employment  on  or  about  a  specified  time,  at  or 
near  a  certain  place.  Notice  served  at  the  office  of,  or 
on  the  person  who  was  the  employe's  immediate  super- 
ior, shall  be  a  compliance  with  this  act. 

17.  After  an  injury,  the  employe,  if  so  requested  by 
his  employer,  must  submit  himself  for  examination  at 
some  reasonable  time  and  place  within  the  State,  and  as 
often  as  may  be  reasonably  requested,  to  a  physician  or 
physicians  authorized  to  practice  under  the  laws  of  this 
State.     If  the  employe  requests,  he  shall  be  entitled  to 
have  a  physician  or  physicians  of  his  own  selection  pres- 
ent to  participate  in  such  examination.     The  refusal  of 
the  employe  to  submit  to  such  examination  shall  de- 
prive him  of  the  right  to  compensation  during  the  con- 
tinuance  of  such  refusal.     When  a  right  to   compen- 
sation is  thus  suspended  no  compensation  shall  be  pay- 
able in  respect  of  the  period  of  suspension. 

18.  In  case  of  a  dispute  over,  or  failure  to  agree 
upon,  a  claim  for  compensation  between  employer  and 
employe,  or  the  dependents  of  the  employe,  either  party 
may  submit  the  claim,  both  as  to  questions  of  fact,  the 
nature  and  effect  of  the  injuries,  and  the  amount  of  com- 
pensation therefor  according  to  the  schedule  herein  pro- 
vided to  the  judge  of  the  court  of  common  pleas  of  such 
county  as  would  have  jurisdiction  in  a  civil  case,  or 
where  there  is  more  than  one  judge  of  said  court,  then 
to  either  or  any  of  said  judges  of  such  court,  which  judge 
is  hereby  authorized  to  hear  and  determine  such  dis- 
putes in  a  summary  manner,  and  his  decision  as  to  all 
questions  of  fact  shall  be  conclusive  and  binding. 

19.  In  case  of  death,  where  no  executor  or  admin- 
istrator is  qualified,  the  said  judge  shall,  by  order,  direct 
payment  to  be  made  to  such  person  as  would  be  ap- 
pointed administrator  of  the  estate   of  such  decedent 
upon  like  terms  as  to  bond  for  the  proper  application  of 


NEW    JERSEY    ACT.  §  255 

compensation  payments  as  are  required  of  administra- 
tors. 

20.  Procedure  in  case  of  dispute  shall  be  as  follows  : 

Either  party  may  present  a  petition  to  said  judge 
setting  forth  the  names  and  residences  of  the  parties 
and  the  facts  relating  to  employment  at  the  time  of 
injury,  the  injury  in  its  extent  and  character,  the  amount 
of  wages  received  at  the  time  of  injury,  the  knowledge 
of  the  employer  or  notice  of  the  occurrence  of  said  in- 
jury, and  such  other  facts  as  may  be  necessary  and 
proper  for  the  information  of  the  said  judge,  and  shall 
state  the  matter  or  matters  in  dispute  and  the  contention 
of  the  petitioner  with  reference  thereto.  This  petition 
shall  be  verified  by  the  oath  or  affirmation  of  the  peti- 
tioner. 

Upon  the  presentation  of  such  petition  the  same  shall 
be  filed  with  the  clerk  of  the  court  of  common  pleas, 
and  the  judge  shall  fix  a  time  and  place  for  the  hearing 
thereof,  not  less  than  three  weeks  after  the  date  of  the 
filing  of  said  petition.  A  copy  of  said  petition  shall  be 
served  as  summons  in  a  civil  action  and  may  be  served 
within  four  days  thereafter  upon  the  adverse  party. 
Within  seven  days  after  the  service  of  such  notice  the 
adverse  party  shall  file  an  answer  to  said  petition,  which 
shall  admit  or  deny  the  substantial  averments  of  the 
petition,  and  shall  state  the  contention  of  the  defendant 
with  reference  to  the  matters  in  dispute  as  disclosed  by 
the  petition.  The  answer  shall  be  verified  in  like  man- 
ner as  required  for  a  petition. 

At  the  time  fixed  for  hearing  or  any  adjournment 
thereof  the  said  judge  shall  hear  such  witnesses  as  may 
be  presented  by  each  party,  and  in  a  summary  manner 
decide  the  merits  of  the  controversy.  This  determina- 
tion shall  be  filed  in  writing  with  the  clerk  of  the  com- 
mon pleas  court,  and  judgment  shall  be  entered  thereon 
in  the  same  manner  as  in  causes  tried  in  the  court  of 
common  pleas,  and  shall  contain  a  statement  of  facts  as 


§  255      WORKMEN'S  COMPENSATION  AND  INSURANCE.     638 

determined  by  said  judge.  Subsequent  proceedings 
thereon  shall  only  be  for  the  recovery  of  moneys  thereby 
determined  to  be  due,  provided  that  nothing  herein  con- 
tained shall  be  construed  as  limiting  the  jurisdiction  of 
the  Supreme  Court  to  review  questions  of  law  by  certi- 
orari.  Costs  may  be  awarded  by  said  judge  in  his  dis- 
cretion, and  when  so  awarded  the  same  costs  shall  be 
allowed,  taxed  and  collected  as  are  allowed,  taxed  and 
collected  for  like  services  in  the  common  pleas  court. 

21.  The  amounts  payable  periodically  as  compensa- 
tion may  be  commuted  to  one  or  more  lump  sum  pay- 
ments by  the  judge  of  the  court  of  common  pleas  having 
jurisdiction  as  set  forth  in  the  preceding  paragraph,  upon 
the  application  of  either  party  in  his  discretion,  provided 
the  same  be  in  the  interest  of  justice.     Unless  so  ap- 
proved, no  compensation  payments  shall  be  commuted. 

An  agreement  or  award  of  compensation  may  be 
modified  at  any  time  by  a  subsequent  agreement,  or  at 
any  time  after  one  year  from  the  time  when  the  same 
became  operative  it  may  be  reviewed  upon  the  applica- 
tion of  either  party  on  the  ground  that  the  incapacity  of 
the  injured  employe  has  subsequently  increased  or 
diminished.  In  such  case  the  provisions  of  paragraph 
seventeen  with  reference  to  medical  examination  shall 
apply. 

22.  The  right  of  compensation  granted  by  this  act 
shall  have  the  same  preference  against  the  assets  of  the 
employer  as  is  now  or  may  hereafter  be  allowed  by  law 
for  a  claim  for  unpaid  wages  for  labor.     Claims  or  pay- 
ments due  under  this  act  shall  not  be  assignable,  and 
shall  be  exempt  from  all  claims  of  creditors  and  from 
levy,  execution  or  attachment. 

SECTION   III.     GENERAL   PROVISIONS. 

23.  For  the  purposes  of  this  act,  wilful  negligence 
shall  consist  of  (1)  deliberate  act  or  deliberate  failure 
to  act,  or  (2)  such  conduct  as  evidences  reckless  indiffer- 


639  NEW    JERSEY   ACT.  §  255 

ence  to  safety,  or  (3)  intoxication,  operating  as  the 
proximate  cause  of  injury. 

Wherever  in  this  act  the  singular  is  used  the  plural 
shall  be  included;  where  the  masculine  gender  is  used, 
the  feminine  and  neuter  shall  be  included. 

Employer  is  declared  to  be  synonymous  with  master 
and  includes  natural  persons,  partnerships  and  corpora- 
tions; employe  is  synonymous  with  servant  and  includes 
all  natural  persons  who  perform  service  for  another  for 
financial  consideration,  exclusive  of  casual  employments. 

Amputation  between  the  elbow  and  the  wrist  shall 
be  considered  as  the  equivalent  of  the  loss  of  a  hand, 
and  amputation  between  the  knee  and  the  ankle  shall  be 
considered  as  the  equivalent  of  the  loss  of  a  foot. 

24.  In  case  for  any  reason  any  paragraph  or  any  pro- 
vision of  this  act  shall  be  questioned  in  any  court  and 
shall  be  held  to  be  unconstitutional  or  invalid,  the  same 
shall  not  be  held  to  affect  any  other  paragraph  or  pro- 
vision of  this  act,  except  that  sections  I  and  II  are  here- 
by declared  to  be  inseparable,  and  if  either  section  be 
declared  void  or  inoperative  in  an  essential  part,  so  that 
the  whole  of  such  section  must  fall,  the  other  section 
shall  fall  with  it  and  not  stand  alone.     Section  I  of  this 
act  shall  not  apply  in  cases  where  section  II  becomes 
operative  in  accordance  with  the  provisions  thereof,  but 
shall  apply  in  all  other  cases,  and  in  such  cases  shall  be 
in  extension  of  the  common  law. 

25.  Every  right  of  action  for  negligence,  or  to  re- 
cover damages  for  injuries  resulting  in  death,  existing 
before  this  act  shall  take  effect,  is  continued,  and  noth- 
ing in  this  act  contained  shall  be  construed  as  affecting 
any  such  right  of  action,  nor  shall  the  failure  to  give  the 
notice  provided  for  in  section  II,  paragraph  fifteen  of 
this  act,  be  a  bar  to  the  maintenance  of  a  suit,  upon  any 
right  of  action  existing  before  this  act  shall  take  effect. 

26.  All  acts  or  parts  of  acts  inconsistent  with  the 
provisions  of  this  act  are  hereby  repealed. 


§  256      WORKMEN'S  COMPENSATION  AND  INSURANCE.      640 

§  256.  Text  of  supplementary  act  saving  existing 
contracts. — The  matter  of  existing  contracts  at  the  time 
of  the  enactment  of  the  foregoing  act  was  covered  by  the 
following  supplementary  act  which  became  effective 
July  4,  1911.  It  reads: 

1.  Every  contract  of  hiring,  verbal,  written  or  im- 
plied from  circumstances,  now  in  operation  or  made  or 
implied  prior  to  the  time  limited  for  the  act  to  which 
this  act  is  a  supplement  to  take  effect,  shall,  after  this  act 
takes  effect,  be  presumed  to  continue  subject  to  the  pro- 
visions of  section  two  of  the  act  to  which  this  act  is  a 
supplement,  unless  either  party  shall,  prior  to  accident, 
in  writing,  notify  the  other  party  to  such  contract  that 
the  provisions  of  section  two  of  the  act  to  which  this 
act  is  a  supplement  are  not  intended  to  apply. 

§  257.  Text  of  act  creating  the  employer's  liability 
commission. — This  act  is  entitled  an  act  creating  the 
employers'  liability  commission  and  prescribing  its 
powers  and  duties,  and  requiring  reports  to  be  made  by 
the  employers  of  labor  upon  the  operations  of  the  em- 
ployers' liability  law  for  the  information  of  said  com- 
mission. This  act  became  effective  April  27,  1911.  It 
provides: 

1.  The  Governor  is  hereby  authorized  to  appoint  six 
citizens  of  this  State  as  an  employers'  liability  commis- 
sion, who  shall  hold  their  offices  for  the  term  of  two 
years  and  until  their  successors  are  appointed  and  quali- 
fied. They  shall  receive  no  compensation  for  their 
services,  but  their  actual  traveling  expenses  incurred 
upon  the  business  of  the  commission  shall  be  paid  by 
the  State  Treasurer,  upon  warrants  approved  by  the 
president  of  the  said  commission.  The  commission  shall 
have  power  to  choose  one  of  their  number  as  president 
and  one  of  their  number  as  secretary,  and  shall  have 
power  to  appoint  a  clerk.  The  expenses  of  the  com- 
mission, the  salary  of  the  secretary  and  of  the  clerk  shall 


641  NEW   JERSEY   ACT. 

be  paid  from  appropriations  made  for  that  purpose  in 
any  annual  or  supplemental  appropriation  bill.  It  shall 
be  the  duty  of  the  commission  to  observe  in  detail,  so  far 
as  possible,  the  operations  throughout  the  State  of  the 
recent  act  of  the  Legislature  commonly  known  as  "The 
Employers'  Liability  Act"  entitled  "An  act  prescribing 
the  liability  of  an  employer  to  make  compensation  for 
injuries  received  by  an  employe  in  the  course  of  employ- 
ment, establishing  an  elective  schedule  of  compensation 
and  regulating  procedure  for  the  determination  of  liabil- 
ity and  compensation  thereunder,"  approved  April 
fourth,  one  thousand  nine  hundred  and  eleven. 

2.  From  and  after  the  fourth  day  of  July  next,  when 
the  said  law  becomes  operative,  every  employer  of  labor 
within  the  State  of  New  Jersey  shall  report  to  said 
commission,  upon  the  occurrence  of  any  injury  to  any 
of  his  employes  the  name  and  nationality  of  the  employe 
so  injured,  the  nature  and  extent  of  such  injury,  whether 
said  injured  employe  and  the  employer  at  the  time  of 
said  injury  were  subject  to  the  provisions  of  section 
one  or  section  two  of  said  act,  and  the  amount  of  com- 
pensation when  determined,  together  with  such  other 
facts  relating  to  such  injury  as  the  commission  may  re- 
quest. The  information  thus  received  shall  be  tabu- 
lated, from  time  to  time,  and  the  records  thereof  shall 
be  the  private  records  of  the  commission;  they  shall  not 
be  made  public  or  open  to  inspection  unless  in  the  opin- 
ion of  the  commission  the  public  interests  shall  require 
it,  and  they  shall  not  be  used  as  evidence  against  any 
employer  in  any  suit  or  action  at  law  brought  by  any 
employe  for  the  recovery  of  damages.  The  commission 
shall  hold  meetings,  from  time  to  time,  as  they  may 
deem  necessary,  and  shall  present  to  each  session  of  the 
Legislature  a  report  showing  the  operations  under  the 
said  act  during  the  preceding  year,  together  with  any 
suggestions  or  recommendations  which  they  may  deem 
necessary  or  proper  for  the  improvement  of  the  said 

4J— BOTD  W  C 


§  258      WORKMEN'S  COMPENSATION  AND  INSURANCE.      642 

act,  in  order  to  accomplish  with  the  greatest  efficiency 
the  purposes  of  the  said  act. 

§  258.     Text  of  act  requiring  reports  of  industrial  ac- 
cidents to  be  made  to  the  Department  of  Labor. — A 

statute  makes  it  the  duty  of  employers  to  report  all  in- 
dustrial accidents.  This  act  became  effective  March  26, 
1912.  It  provides: 

1.  Upon  the  happening  of  any  accident  in  any  em- 
ployment of  labor  in  this   state,   the   result   of  which 
shall  be  to  prevent  the  injured  person  or  persons  from 
resuming  work  within  two  weeks  after  the  happening 
thereof,  the  employer  of  such  injured  person  or  persons 
shall  report,  in  writing,  to  the  Commissioner  of  Labor 
the  time,  place  and  cause  of  the  said  accident,  as  nearly 
as  the  same  may  be  fairly  ascertained,  the  extent  of 
injuries  received,  and  such  other  facts  as  the  Commis- 
sioner of  Labor  may,  by  rule  or  regulation,  require.  In 
case  of  injury  not  producing  death,  such  report  shall  be 
filed  within  four  weeks  after  the  happening  of  such  in- 
jury.  In  case  of  injury  producing  death,   report   shall 
be  filed  within  two  weeks  thereafter.     Such  reports  may 
be  forwarded  by  mail,  postage  prepaid. 

2.  All    companies    engaged    in    casualty   insurance 
business  within  the  state  of  New  Jersey  shall  furnish  to 
the  Commissioner  of  Labor  a  full  and  complete  report 
of  all  accidents  to  the  employes  of  any  person,  firm,  or 
corporation  insured  by  them,  which  prevents  such  in- 
jured person   or  persons   from  resuming  work  within 
two  weeks  after  the  happening  of  such  injury,  or  which 
result  in  death.  In  case  of  injury  not  producing  death, 
such  report  shall  be  filed  within  four  weeks  after  such 
injuries  have  been  reported  to  such  insurance  company, 
or  such  insurance  company  has  otherwise  gained  knowl- 
edge thereof.     In  case  of  injury  producing  death,  such 
report  shall  be  filed  within  two  weeks  after  such  death 
has  been  reported  to  such  insurance  company,  or  such 


643  NEW  JERSEY  ACT.  §  258 

insurance  company  has  otherwise  gained  knowledge 
thereof.  Such  reports  shall  state  the  time,  place  and 
cause  of  injury,  as  nearly  as  the  same  may  be  ascer- 
tained, and  the  extent  thereof,  and  such  other  and  fur- 
ther information  as  the  Commissioner  of  Labor  may, 
by  rule  or  regulation,  require.  Such  notice  may  be  sent 
by  mail,  postage  prepaid. 

3.  The  report  filed  with  the  Commissioner  of  Labor, 
in  accordance  with  the  provisions  of  this  act,  shall  not 
be  made  public,  and  shall  not  be  opened  to  inspection 
unless,  in  the  opinion  of  the  Commissioner  of  Labor, 
some  public  interest  shall  so  require,  and  such  reports 
shall  not  be  used  as  evidence  against  any  employer  in 
any  suit  or  action  at  law  brought  by  any  employe  for 
the  recovery  of  damages,  but  such  reports  shall  always 
be  at  the  service  and  use  of  the  Employers'  Liability 
Commission.  Reports  filed  in  accordance  with  this  act 
shall  be  in  lieu  of  all  other  reports  required  to  be  filed 
pursuant  to  the  provisions  of  an  act  entitled  "An  act 
creating  the  Employers'  Liability  Commission  and  pre- 
scribing its  powers  and  duties,  and  requiring  reports  to 
be  made  by  the  employers  of  labor  upon  the  operations 
of  the  Employers  Liability  Law  for  the  information  of 
said  commission,"  approved  April  twenty-seventh,  one 
thousand  nine  hundred  and  eleven,  and  shall  be  con- 
sidered to  be  compliance  with  the  terms  of  the  last  men- 
tioned act. 

4.  Any  corporation^  firm  or  person  violating  any  of 
the  provisions  of  this  act  shall  for  each  offense  be  liable 
to  a  penalty  of  fifty  dollars,  to  be  recovered  in  an  action 
of  debt,  brought  by  the  Commissioner  of  Labor,  in  the 
name  of  the  State  of  New  Jersey.  Each  failure  to  re- 
port shall  be  regarded  as  a  separate  offense. 

Approved  March  26,  1912. 

§  259.  Construction  of  act  and  procedure  there- 
under.— The  New  Jersey  Workmen's  Compensation  Act 


§  260     WORKMEN'S  COMPENSATION  AND  INSURANCE.      644 

does  not  provide  for  the  creation  of  a  Board  of  Admin- 
istration of  the  Act,  but  does  provide  for  the  creation 
of  the  "Employer's  Liability  Commission  to  observe 
in  detail,  so  far  as  possible,  the  operation  through- 
out the  state  of  the  Workmen's  Compensation  Act." 
The  law  requires  that  every  employer  of  labor 
report  to  the  said  commission  certain  facts  regarding 
every  accident  causing  injury  to  any  of  his  employes 
which  entails  a  disability  of  two  weeks,  and  that  said 
commission  report  annually  to  the  Legislature  showing 
the  operations  under  the  said  act  during  the  preceding 
year,  together  with  any  suggestions  or  recommenda- 
tions which  they  may  deem  necessary  for  the  improve- 
ment of  the  said  law. 

Since  March  26,  19122  the  law  requires  all  liability 
insurance  companies  to  report  to  the  Commissioner  of 
Labor  all  accidents  causing  disability  of  two  weeks,  com- 
ing under  their  hands,  both  as  to  the  extent  of  the  in- 
jury and  the  amounts  paid  on  account  of  such  accidents. 

Only  two  forms  have  been  prescribed.  One  form 
is  to  be  made  out  by  employers  and  the  other  is  to  be 
filled  out  by  all  Liability  Insurance  companies  and  filed 
with  the  said  commissioner.  These  two  forms  preceded 
by  certain  constructions  of  the  compensation  law  and 
procedure  under  it  are  set  out  in  the  succeeding  sections. 

§  260.  Form  of  accident  blank  for  report  by  em- 
ployer: 

To  Employers  of  Labor  of  Any  Kind: 

The  law  requires  that  all  accidents  which  prevent  the  injured 
person  from  returning  to  work  within  two  weeks,  or  which  result 
in  death,  shall  be  reported  in  writing  to  the  Department,  at  Tren- 
ton, New  Jersey,  within  four  weeks,  or  after  the  death  of  such 
person  injured,  within  two  weeks. 

Your  attention  is  directed  to  the  fact  that  the  law  provides  a 
fine  when  such  reports  are  not  made  in  the  manner  specified. 

For  such  purpose  this  blank  is  furnished.    Use  a  blank  for  each 


2  See  post  §  261. 


645  NEW    JERSEY   ACT.  §  260 

person  injured,  and,  when  more  blanks  are  needed,  notify  the  De- 
partment. 

This  blank  is  to  be  filled  out  in  full  according  to  the  facts  at  the 
time  of  reporting.  In  case  the  accident  herein  reported  results  sub- 
sequently in  death,  that  fact  should  then  be  immediately  reported. 

The  purpose  of  these  reports  is  statistical  and  preventive. 

It  is  the  desire  of  the  Department  to  have  the  manufacturers  of 
the  State  co-operate  with  it  in  the  effort  being  made  of  preventing 
accidents,  and  the  Department  is  particularly  anxious  to  receive 
suggestions  calculated  to  guard  against  a  repetition  of  accidents 
coming  under  the  observation  of  manufacturers,  especially  improve- 
ments in  the  guarding  of  machinery,  etc. 

LEWIS  T.  BRYANT,  Commissioner  of  Labor. 

One  purpose  of  these  reports  is  to  secure  as  definite  information 
of  the  operation  of  the  Employers'  Liability  Act  as  can  be  obtained, 
and  the  law  directs  that  they  shall  always  be  at  the  service  and  use 
of  the  Employers'  Liability  Commission  to  enable  them  to  investi- 
gate the  operations  of  said  act,  in  order  to  present  to  each  session 
of  the  Legislature  a  report  showing  the  operations  under  said  act, 
together  with  suggestions  and  recommendations  for  its  improve- 
ment. 

To  that  end  the  Employers'  Liability  Commission  is  most  anxious 
to  secure  the  kindly  help  of  employers  of  all  kinds  of  labor  through- 
out the  State,  by  comment,  criticism  or  suggestion. 

WILLIAM  E.  STUBBS,  Secretary. 

(Name  of  firm.) 
(Business.) 

(P.  O.  Address.) 

Reports  that  the  person  named  opposite  was  injured  on  the  prem- 
ises No Street, (city  or  village) 

on  the day  of 19 

A,  If  this  is  a  second  report,  draw  a  line  from  A  to  B  canceling 

questions  covered. 
Nature  and  extent  of  injury 

Cause  and  manner  of  the  accident,  (a)  State  fully  how  the  acci- 
dent occurred  (indefinite  or  incomplete  reports  will  be  returned 
for  correction)  

Has  any  accident  ever  occurred  to  any  of  the  employe's  under  simi- 
lar circumstances  at  the  same  place  or  with  the  same  apparatus? 

Was  part  of  machine  causing  the  injury  properly  guarded  at  time 
of  accident?—. 


§  260      WORKMEN'S  COMPENSATION  AND  INSURANCE.      646 

If  so,  how? 


Was  the  person  injured  regularly  employed  on  such  machine  or  on 

the  particular  work  at  which  injured? 

| _ 

If  so,  how  long? 

Can  you  suggest  a  practical  method  against  a  repetition  of  this  acci- 
dent?   . 


B 

Date    of    reporting 

Report  every  accident  which  entails  disability  of  two  weeks,  med- 
ical aid3  or  compensation. 

To  be  forwarded  to  the  Department  of  Labor,  Trenton,  N.  J. 

(Name  of  person  injured.) 
(Street  residence.) 
(City  or  village.) 


(Occupation.) 
Sex Age Married? 

Nationality    

Is  this  the  first  or  second  REPORT  of  this  case? 

Is  there  another  report  of  this  case  to  FOLLOW? 

Did  you  GIVE  written  notice  that  the  compensation  pro- 
visions of  section  two  of  the  Employers'  Liability  Act 
were  not  to  apply  to  this  employs? 

Did  you  RECEIVE  such  notice  from  this  employe? 

Did  the  injury  result  in  DEATH? 

Is  the  disability  permanent  and  TOTAL,  as  per  clauses 
(b)  and  (c),  paragraph  II,  of  Liability  Law? 

Is  the  injury  permanent  and  PARTIAL? 

Did  the  injury  REQUIRE  medical  aid? 

Did  you  SUPPLY  all  the  medical  aid  required  during  the 
first  two  weeks? 

State  the  COST  of  medical  aid  rendered  by  you. 

How  much  TIME  did  the  employe  lose  due  to  the  injury? 

State  the  amount  of  weekly  WAGES. 

Has,  or  will,  this  employe,  or  dependents,  receive  COM- 
PENSATION weekly? 


3  The  term  medical  aid  will  probably  be  stricken  out  of  next 
issue  of  blanks. 


647  NEW   JERSEY   ACT.  §  261 

If  so,  how  MUCH  per  week?  

And  for  how  MANY  weeks?  

In  case  of  death,  state  number  of  DEPENDENTS.  

In  case  of  death,  with  no  dependents,  state  cost  of  last 

sickness  and  BURIAL.  

State  TOTAL,  to  which  it  will  amount  for  all  items,  paid 

and  to  be  paid.  

Was  this  case  submitted  to  the  Judge  of  the  COURT  of 

Common  Pleas  for  settlement  or  adjustment?  

If  so,  specify  the  Court, 

If  no  compensation  was  or  is  to  be  paid  to  the  injured,  state  grounds 

for  not  so  doing 


If  case  is  not  yet  closed,  make  a  second  report  giving  the  final 
figures,  at  termination  of  disability,  or  if  death  results  later. 

This  Department  should  be  notified  of  any  subsequent  modifica- 
tion of  agreement  of  award  or  commutation  thereof. 

(Signature  of  firm  reporting.) 

Printed  in  copying  ink  for  convenience  of  persons  desiring  to  re- 
tain copy. 

§  261.  Form  of  report  by  insurance  company  to 
commissioner  of  labor  on  accident  and  compensation 
paid. 

(Name  of  insured  employer.) 

(P.  O.  address.) 

On   second   report  omit  replies   to   questions   answered  on  first 
report. 
Nature  and  extent  of  injury 


Cause   of   accident. 


If  no  compensation  was  or  is  to  be  paid,   state  grounds   for  not 
so    doing 

If  case  is  not  yet  closed,  make  a  second  report,  giving  the  final 
figures,  at  the  termination  of  disability,  or  if  death  results  later. 

This  Department  should  be  notified  of  any  subsequent  modifica- 
tion of  agreement  or  award,  or  commutation  thereof. 


§  26 1      WORKMEN'S  COMPENSATION  AND  INSURANCE.      648 

Date    of    reporting 

To  be  forwarded  to  the  Department  of  Labor,  Trenton, 
NEW  JERSEY. 

(Name  of  person  injured.) 

On  the day  of 19 

Is  this  first  or  second  REPORT  of  this  case?  

Is  there  another  report  of  this  case  to  FOLLOW?  

Was  injured  subject  to  SECTION  1  or  2  of  the  Liability 

Law?  

Did  the  injury  REQUIRE  medical  aid?  

Was  medical  aid  SUPPLIED  in  accordance  with  law?        

State  approximate  COST  of  medical  aid.  

Has,    or    will,    this    employe,    or    dependents,    receive 

COMPENSATION  weekly?  

If  so,  how  MUCH  per  week?  

And  for  how  MANY  weeks?  

In  case  of  death,  with  no  dependents,  state  cost  of  last 

sickness  and  BURIAL.  

State  TOTAL  to  which  it  will  amount  for  all  items,  paid 

and  to  be  paid.  


(Signature  of  Insurance  Co.) 


CHAPTER  XIV. 


THE  CALIFORNIA  WORKMEN'S  COMPENSATION  ACT. 


Sec.  Sec. 

262.  The    nature    and   scope    of      275. 

the  act. 

263.  The  California  act  and  its 

construction  by  the  board.      276. 

264.  Reports   of  industrial  acci- 

dents. 277. 

265.  Rules  of  practice  of  the  in- 

dustrial accident  board  of 
California.  278. 

266.  The   formal   procedure  un- 

der the  act. 

267.  Forms  to  be  used  by  em-      279. 

ployers. 

268.  Form    of    employer's    writ- 

ten acceptance  of  the  pro- 
visions of  the  act.  (a)  280. 

269.  Form    of    employer's    with- 

drawal  of   acceptance    of      281. 
provisions  of  the  act.  (b) 

270.  Form    of   notice    that   em- 

ployer  has    accepted    the       282. 

compensation     provisions 

of  the  act.  (c)  283. 

271.  Form    of    employer's    first 

report  of  accident  to  em-      284. 
ploye".  (d) 

272.  Form  of  employer's  supple-      285. 

mental  report  of  accident 

to  employe,  (e)  286. 

273.  Forms  for  employe's. 

274.  Form  of  notice  by  employe 

of  election  not  to  be  sub-      287. 
ject  to  the  provisions  of 
the  act.  (f) 


Form  of  notice  to  employer 
of  claim  for  compensation 
for  injury  under  act.  (g) 

Forms  for  hearings  before 
board. 

Form  of  notice  of  filing  of 
application  for  adjust- 
ment of  claim,  (h) 

Form  of  notice  of  hearing 
of  application  for  adjust- 
ment of  claim,  (i) 

Form  of  subpoena  for  wit- 
ness to  appear  before  in- 
dustrial accident  board, 
(j) 

Forms  to  be  used  by  physi- 
cians. 

Form  of  physician's  report 
of  accident  to  employs, 
(k) 

Form  of  request  for  report 
of  accident.  (1) 

Form  of  request  for  fuller 
report  of  accident,  (m) 

Form  of  notice  to  doctor  to 
file  report,  (n) 

Forms  to  be  used  by  casual- 
ty companies. 

Form  of  first  accident  re- 
port of  casualty  company, 
(o) 

Form  of  supplemental  ac- 
cident report  of  casualty 
company,  (p) 


§  262.     The  nature  and  scope  of  the  act. — The  Cali- 
fornia act  is  an  adaptation  of  the  Wisconsin  statute  with 

649 


§  263     WORKMEN'S  COMPENSATION  AND  INSURANCE.     650 

slight  modifications.  Briefly  stated,  it  abolishes  the  de- 
fenses of  fellow  servant  and  assumption  of  risk  and 
establishes  the  doctrine  of  comparative  negligence  in 
actions  for  injuries  to  employes.  The  employer  is  denied 
the  right  to  exemption  from  liability  under  contracts, 
rules  or  regulations.  Where  the  employer  elects  to  be 
bound  by  the  statutory  compensations  and  his  employe 
does  not  notify  the  employer  of  his  unwillingness  to  be 
bound  thereby,  then  the  compensation  for  injury  or 
death  is  that  fixed  by  the  statute  unless  the  injury  is  due 
to  the  personal  gross  negligence  or  wilful  personal  mis- 
conduct of  the  employer  or  his  violation  of  a  statutory 
duty.  Where  the  injuries  are  due  to  these  causes,  the 
employe  may,  at  his  option,  claim  compensation  under 
the  act  or,  he  may  sue  his  employer  and  the  employer 
may  interpose  only  the  single  defense  of  comparative 
negligence.  Compensation  will  be  denied  the  employe 
where  the  injury  is  the  result  of  his  own  wilful  miscon- 
duct. 

§  263.  The  California  act  and  its  construction  by  the 
board. — The  act  is  entitled,  "An  act  relating  to  the  lia- 
bility of  employers  for  injuries  or  death  sustained  by 
their  employes,  providing  for  compensation  for  the  acci- 
dental injury  of  employes,  establishing  an  industrial  ac- 
cident board,  making  an  appropriation  therefor,  defining 
its  powers  and  providing  for  a  review  of  its  awards." 
The  act  was  approved  April  8,  1911,  and  became  effective 
September  1,  1911.  It  provides: 

Section  1.  In  any  action  to  recover  damages  for  a 
personal  injury  sustained  within  this  state  by  an  em- 
ploye while  engaged  in  the  line  of  his  duty  or  the  course 
of  his  employment  as  such,  or  for  death  resulting  from 
personal  injury  so  sustained,  in  which  recovery  is  sought 
upon  the  ground  of  want  of  ordinary  or  reasonable  care 
of  the  employer,  or  of  any  officer,  agent  or  servant  of 
the  employer,  the  fact  that  such  employe  may  have  been 


651  CALIFORNIA    ACT.  §263 

guilty  of  contributory  negligence  shall  not  bar  a  re- 
covery therein  where  his  contributory  negligence  was 
slight  and  that  of  the  employer  was  gross,  in  com- 
parison, but  the  damages  may  be  diminished  by  the  jury 
in  proportion  to  the  amount  of  negligence  attributable 
to  such  employe,  and  it  shall  be  conclusively  presumed 
that  such  employe  was  not  guilty  of  contributory  negli- 
gence in  any  case  where  the  violation  of  any  statute  en- 
acted for  the  safety  of  employes  contributed  to  such  em- 
ploye's injury;  and  it  shall  not  be  a  defense: 

(1)  That  the  employe  either  expressly  or  impliedly 
assumed  the  risk  of  the  hazard  complained  of. 

(2)  That  the  injury  or  death  was  caused  in  whole  or 
in  part  by  the  want  of  ordinary  or  reasonable  care  of  a 
fellow  servant. 

Note  by  board — The  foregoing  section  abolishes  the  common-law 
doctrine  of  assumption  of  risk  and  the  fellow-servant  rule,  and  modi- 
fies the  defense  of  contributory  negligence,  thereby  increasing  the 
liability  of  the  employer  in  excess  of  300  per  cent. 

This  portion  of  the  act  is  not  elective  and  applies  to  every  em- 
ployer. In  an  action  at  law,  there  is  no  limit  placed  upon  the 
amount  of  damages  that  may  be  recovered  for  personal  injuries  sus- 
tained. If,  however,  an  employer  elects  the  compensation  schedule 
fixed  by  the  succeeding  sections  of  the  act,  the  amount  that  may  be 
recovered  by  an  injured  employe  is  limited  to  the  scale  of  compensa- 
tion specified  in  section  8  of  the  act.  In  determining  whether  or 
not  he  will  elect  compensation,  a  prudent  employer  will  take  into 
consideration  his  increased  liability,  the  present  tendency  of  the 
courts  and  juries  to  allow  heavy  damages  for  personal  injuries,  and 
the  fact  that  the  ordinary  indemnity  insurance  is  limited  to  $5,000 
for  a  single  injury  and  to  $10,000  where  more  than  one  person  is 
hurt  through  a  single  accident.  The  New  York  Commission  investi- 
gated two  hundred  and  thirty-four  fatal  cases,  and  found  that  2.1 
per  cent,  of  the  recoveries  allowed  were  in  excess  of  $5,000.  Sta- 
tistics show  that  when  an  accident  causes  permanent  disability,  a 
larger  sum  is  awarded  the  injured  than  is  paid  where  the  accident 
results  in  death.  This  is  exemplified  by  the  recent  decision  of  the 
Supreme  Court  of  the  State  of  California,  affirming  a  judgment  for 
$70,000,  which,  together  with  accrued  interest  and  costs,  amounted 
to  $92,000.  These  instances  plainly  show  that  insurance  under  the 
old  system  of  employers'  liability  is  wholly  inadequate,  and  that 


§263     WORKMEN'S  COMPENSATION  AND  INSURANCE.     652 

only  through  compensation,  with  its  limited  risks,  can  the  employer 
be  fully  protected. 

Section  2.  No  contract,  rule  or  regulation,  shall 
exempt  the  employer  from  any  of  the  provisions  of  the 
preceding  section  of  this  act. 

Note  by  board — This  section  makes  it  impossible  for  an  employer 
to  avoid  liability  for  damages  by  obtaining  from  his  employe,  as  a 
condition  precedent  to  employment,  a  waiver  of  liability  which 
would  impair  the  employe's  rights  under  this  act. 

Section  3.  Liability  for  the  compensation  herein- 
after provided  for,  in  lieu  of  any  other  liability  whatso- 
ever, shall,  without  regard  to  negligence,  exist  against 
an  employer  for  any  personal  injury  accidentally  sus- 
tained by  his  employes,  and  for  his  death  if  the  injury 
shall  approximately  cause  death,  in  those  cases  where 
the  following  conditions  of  compensation  concur: 

(1)  Where,  at  the  time  of  the  accident,  both  the  em- 
ployer and  employe  are  subject  to  the  provisions  of  this 
act  according  to  the  succeeding  sections  hereof. 

(2)  Where,  at  the  time  of  the  accident,  the  employe 
is  performing  service  growing  out  of  and  incidental  to 
his  employment  and  is  acting  within  the  line  of  his  duty 
or  course  of  his  employment  as  such. 

(3)  Where  the  injury  is  approximately  caused  by 
accident,  either  with  or  without  negligence,  and  is  not 
so  caused  by  the  wilful  misconduct  of  the  employe. 

And  where  such  conditions  of  compensation  exist 
for  any  personal  injury  or  death,  the  right  to  the  recov- 
ery of  such  compensation  pursuant  to  the  provisions  of 
this  act,  and  acts  amendatory  thereof,  shall  be  the  ex- 
clusive remedy  against  the  employer  for  such  injury  or 
death,  except  that  when  the  injury  was  caused  by  the 
personal  gross  negligence  or  wilful  personal  misconduct 
of  the  employer,  or  by  reason  of  his  violation  of  any 
statute  designed  for  the  protection  of  employes  from 
bodily  injury,  the  employe  may,  at  his  option,  either 
claim  compensation  under  this  act,  or  maintain  an  action 


653  CALIFORNIA    ACT.  §  263 

for  damages  therefor;  in  all  other  cases  the  liability  of 
the  employer  shall  be  the  same  as  if  this  and  the  suc- 
ceeding sections  of  this  act  had  not  been  passed,  but 
shall  be  subject  to  the  provisions  of  the  preceding  sec- 
tions of  this  act. 

Note  by  board — Compensation  must  be  paid  for  any  personal  in- 
jury accidentally  sustained  by  an  employe,  whenever  these  facts 
appear : 

(1)  Both  employer  and  employe  are  subject  to  the  compensa- 
tion provisions  of  the  act. 

(2)  Injury  approximately  caused  by  accident. 

(3)  Employe  at  the  time  of  the  accident  was  performing  serv- 
ice, within  scope  of  employment  and  growing  out  of  and  incidental 
to  his  employment. 

(4)  Such  injury  was  not  caused  by  wilful  misconduct  of  in- 
jured employe. 

An  accident  has  been  defined  as  "a  bodily  injury  arising  out  of 
the  sudden  action  of  a  violent,  fortuitous  and  external  cause." 

It  makes  no  difference  who  is  to  blame  for  the  accidental  in- 
jury; it  is  sufficient  that  the  injury  was  received  while  the  em- 
ploye was  performing  the  proper  services  of  his  employment.  Only 
wilful  misconduct,  that  is  to  say  "intentional"  misconduct,  on  the 
part  of  the  injured  employe  can  relieve  the  employer  from  liability 
for  compensation. 

When  the  conditions  of  compensation  exist,  the  right  to  compen- 
sation becomes  the  exclusive  remedy  of  the  injured  employe",  unless 

(1)  The  injury  was  caused  by  the  "personal  gross  negligence" 
or  "wilful  personal  misconduct"  of  employer;   or, 

(2)  By  reason  of  his  violation  of  any  statute  designed  for  the 
protection  of  his  employes  from  bodily  injury. 

In  either  of  such  cases  the  employe"  may  elect  compensation  or 
proceed  at  law  for  damages. 

The  workman  is  denied  the  right  to  compensation  where  the  ac- 
cident results  from  his  wilful  misconduct,  and  likewise  the  employer 
is  denied  the  benefit  of  compensation  (at  the  option  of  the  work- 
man) if  the  accident  results  from  the  gross  "personal"  fault  or  mis- 
conduct of  the  employer. 

In  our  act,  the  option  is  given  to  the  employe  only  when  the  ac- 
cident is  caused  by  the  "gross  personal"  fault  of  the  employer.  The 
negligence  or  misconduct  of  another  can  not  be  imputed  to  the  em- 
ployer. 

Section  4.  The  following  shall  constitute  employers 
subject  to  the  provisions  of  this  act  within  the  mean- 
ing of  the  preceding  section: 


§  263     WORKMEN'S  COMPENSATION  AND  INSURANCE.     654 

(1)  The  state,  and  each  county,  city  and  county, 
city,  town,  village  and  school  districts  and  all  public 
corporations,  every  person,  firm,  and  private  corpora- 
tion (including  any  public  service  corporation),  who  has 
any  person  in  service  under  any  contract  of  hire,  express 
or  implied,  oral  or  written,  and  who,  at  or  prior  to  the 
time  of  the  accident  to  the  employe  for  which  compen- 
sation under  this  act  may  be  claimed,  shall,  in  the  man- 
ner provided  in  the  next  section,  have  elected  to  become 
subject  to  the  provisions  of  this  act,  and  who  shall  not, 
at  the  time  of  such  accident,  have  withdrawn  such  elec- 
tion, in  the  manner  provided  in  the  next  section. 

Jfote  by  board — This  section,  when  read  in  connection  with  sec- 
tions 6  and  7,  defines  the  two  classes  of  employers  to  which  the 
compensation  schedule  applies. 

(1)  The  state,  and  each  county,  city  and  county,   city,   town, 
village  and  school  district  and  all  public  corporations. 

(2)  All  private  employers  who  shall  have  elected  to  come  within 
the  compensation  provisions  of  the  act. 

Except  in  so  far  as  it  may  conflict  with  the  constitutional  pro- 
visions relative  to  charter  cities,  there  can  be  little  doubt  as  to  the 
right  of  the  legislature  to  provide  for  the  compensation  of  those  in 
the  public  service.  Since  compensation  to  injured  workmen  is  based 
upon  broad  considerations  of  public  welfare,  as  well  as  the  resultant 
benefit  to  the  individual,  the  state  and  its  subdivisions  should  be 
the  first  to  extend  to  employes  the  compensation  which  the  state 
recommends  to  private  employers. 

Officials  of  the  public  bodies  named  should  make  proper  pro- 
visions for  the  compensation  fixed. 

Section  5.  Such  election  on  the  part  of  the  employer 
shall  be  made  by  filing  with  the  industrial  accident 
board,  hereinafter  provided  for,  a  written  statement  to 
the  effect  that  he  accepts  the  provisions  of  this  act,  the 
filing  of  which  statement  shall  operate,  within  the  mean- 
ing of  section  three  of  this  act,  to  subject  such  employer 
to  the  provisions  of  this  act  and  all  acts  amendatory 
thereof  for  the  term  of  one  year  from  the  date  of  the 
filing  of  such  statement,  and  thereafter,  without  further 
act  on  his  part,  for  successive  terms  of  one  year  each, 
unless  such  employer  shall,  at  least  sixty  days  prior  to 


655  CALIFORNIA    ACT.  §  263 

the  expiration  of  such  first  or  any  succeeding  year,  file 
in  the  office  of  said  board  a  notice  in  writing  to  the  effect 
that  he  withdraws  his  election  to  be  subject  to  the  pro- 
visions of  the  act. 

Note  by  board — By  filing  the  statement  with  the  Industrial  Acci- 
dent Board,  the  employer  voluntarily  accepts  the  compensation 
schedule  of  the  act  for  the  term  of  one  year.  Since  compensation 
legislation  is  in  a  sense  experimental  in  California,  and  its  ultimate 
success  dependent  upon  the  co-operation  of  the  employer,  it  was 
thought  best  to  allow  an  employer  to  elect  the  compensation  for  a 
limited  term,  with  the  right  to  withdraw  his  election  at  the  expira- 
tion of  the  term  in  the  event  he  found  compensation  unsatisfactory. 
Since  this  act  was  passed  a  constitutional  amendment  designed 
to  meet  any  constitutional  objections  has  been  adopted  by  the  peo- 
ple of  this  state,  and  it  is  probable  that  at  some  future  time  a  com- 
pulsory act  will  be  adopted. 

Section  6.     The  term  "employe"  as  used  in  section 
three  of  this  act  shall  be  construed  to  mean : 

(1)  Every  person  in  the  service  of  the  state,  or  any 
county,  city  and  county,  city,  town,  village  or  school  dis- 
trict therein,  and  all  public  corporations,  under  any  ap- 
pointment or  contract  of  hire,  express  or  implied,  oral  or 
written,  except  any  official  of  the  state,  or  of  any  county, 
city  and  county,  city,  town,  village  or  school  district 
therein  or  any  public  corporation,  who  shall  have  been 
elected  or  appointed  for  a  regular  term  of  one  or  more 
years,  or  to  complete  the  unexpired  portion  of  any  such 
regular  term. 

(2)  Every  person  in  the  service  of  another  under 
any  contract  of  hire,  express  or  implied,  oral  or  written, 
including  aliens,   and   also   including   minors   who   are 
legally  permitted  to  work  under  the  laws  of  the  state 
(who,  for  the  purposes  of  the  next  section  of  this  act, 
shall  be  considered  the  same  and  shall  have  the  same 
power  of  contracting  as  adult  employes),  but  not  includ- 
ing any  person  whose  employment  is  but  casual  and  not 
in  the  usual  course  of  the  trade,  business,  profession  or 
occupation  of  his  employer. 


§  263     WORKMEN'S  COMPENSATION  AND  INSURANCE.     656 

Note  by  board — This  section  defines  the  two  classes  of  employes : 

(1)  Public  employes. 

(2)  Private  employes. 

In  the  first  class  a  distinction  is  made  between  an  "employe"  and 
an  "official."  Public  officials  are  not  included  in  the  compensation 
benefits. 

In  the  second  class  a  distinction  is  made  between  the  ordinary 
employe  and  the  employe  "whose  employment  is  but  casual,  and  not 
in  the  usual  course  of  the  trade,  business,  profession  or  occupation 
of  his  employer."  Such  employes  are  excluded  from  the  compensation 
benefits. 

Section  7.  Any  employe  as  defined  in  subsection  (1) 
of  the  preceding  section  shall  be  subject  to  the  provi- 
sions of  this  act  and  of  any  act  amendatory  thereof.  Any 
employe  as  defined  in  subsection  (2)  of  the  preceding 
section  shall  be  deemed  to  have  accepted  and  shall, 
within  the  meaning  of  section  3  of  this  act  be  subject  to 
the  provisions  of  this  act  and  of  any  act  amendatory 
thereof,  if,  at  the  time  of  the  accident  upon  which  liabil- 
ity is  claimed : 

(1)  The  employer  charged  with  such  liability  is  sub- 
ject to  the  provisions  of  this  act,  whether  the  employe 
has  actual  notice  thereof  or  not ;  and 

(2)  At  the  time  of  entering  into  his  contract  of  hire, 
express  or  implied,  with  such  employer,  such  employe 
shall  not  have  given  to  his  employer  notice  in  writing 
that  he  elects  not  to  be  subject  to  the  provisions  of  this 
act,  or,  in  the  event  that  such  contract  of  hire  was  made 
in  advance  of  such  employer  becoming  subject  to  the 
provisions  of  the  act,  such  employe  shall,  without  giving 
such  notice,  remain  in  the  service  of  such  employer  for 
thirty  days  after  the  employer  has  filed  with  said  board 
an  election  to  be  subject  to  the  terms  of  this  act. 

Note  by  board — (1)  "Public  Employes."  As  to  such  persons, 
the  act  is  compulsory.  No  recovery  can  be  had  against  the  state  by  an 
individual  unless  given  the  right  by  statute.  Since  the  legislature 
can  deprive  an  injured  person  of  all  right  against  the  state  to  com- 
pensation, it  can  compel  such  person  to  accept  the  compensation  it 
chooses  to  extend. 

(2)     "Private  Employes."    The  same  reasons  which  impelled  the 


657  CALIFORNIA    ACT.  §  263 

legislature  to  make  the  act  optional  with  employers  apply  with 
equal  force  to  employes.  After  an  acceptance  has  been  filed  by  the 
employer,  the  workman  may  elect  whether  he  desires  to  accept  com- 
pensation or  retain  his  common-law  right  to  sue.  If  the  employer 
has  accepted  the  compensation  schedule,  then  the  employe  comes  un- 
der its  provisions,  unless  (1)  at  the  time  of  entering  into  the  em- 
ployment, the  employe  gives  the  written  notice  required  by  this  sec- 
tion; or  (2),  if  the  contract  of  hire  was  made  before  the  date  of  the 
employer's  acceptance,  the  employe  gives  said  notice  within  thirty 
days.  In  either  case,  the  dependents  of  a  deceased  workman  are 
bound  by  his  election. 

In  England  and  some  other  jurisdictions,  the  workman  is  not  com- 
pelled to  make  his  election  until  after  the  happening  of  the  acci- 
dent, but  our  legislature  felt  that  it  was  unfair  to  the  employer  to 
allow  a  workman  to  sue  at  law  in  ordinary  instances,  if  he  thought 
he  could  get  more  by  so  doing,  and  apply  for  compensation  when  no 
legal  liability  existed.  Furthermore,  if  he  could  elect  after  the  in- 
jury, it  would  create  dissatisfaction  and  unnecessary  economic  waste 
— dissatisfaction  in  that  when  two  men  are  similarly  injured,  one 
might  sue  at  law  and  get  either  $10,000  or  nothing,  and  the  other 
elect  compensation  and  get  $1,000;  waste  in  that  in  every  instance 
the  employer  would  have  to  procure  all  the  evidence  and  prepare  his 
defenses  in  anticipation  of  a  suit,  not  knowing  whether  or  not  an 
action  at  law  would  be  brought  against  him. 

Section  8.  Where  liability  for  compensation  under 
this  act  exists  the  same  shall  be  as  provided  in  the  fol- 
lowing schedule : 

MEDICAL  AND  SURGICAL  TREATMENT  AND  SUPPLIES. 

(1)  Such  medical  and  surgical  treatment,  medicines, 
medical  and  surgical  supplies,  crutches  and  apparatus, 
as  may  be  reasonably  required  at  the  time  of  the  injury 
and  thereafter  during  the  disability,  but  not  exceeding 
ninety  days,  to  cure  and  relieve  from  the  effects  of  the 
injury,  the  same  to  be  provided  by  the  employer,  and 
in  case  of  his  neglect  or  refusal  seasonably  to  do  so,  the 
employer  to  be  liable  for  the  reasonable  expense  incurred 
by  or  on  behalf  of  the  employe  in  providing  the 
same;  provided,  however,  that  the  total  liability  under 
this  subdivision  shall  not  exceed  the  sum  of  $100.00. 

Note  by  board— This  provision  as  to  medical  treatment  is  made 
for  three  reasons: 

42— BOTD  w  c 


§  263     WORKMEN'S  COMPENSATION  AND  INSURANCE.     658 

(1)  As  a  rule,  the  employer  is  perhaps  more  competent  to  judge 
the  efficiency  of  the  doctor  and  to  provide  proper  medical  and  sur- 
gical treatment  than  the  injured  man. 

(2)  It  is  to  the  interest  of  the  employer  to  furnish  the  very 
best  medical  and  surgical  care  to  minimize  the  result  of  the  injury, 
and  to  secure  an  early  recovery. 

(3)  By  so  doing,  he  obtains  a  complete  knowledge  of  the  con- 
dition of  the  injured  employe. 

TIME  OF  COMPENSATION  PAYMENTS. 

(2)  If  the  accident  causes  disability,  an  indemnity 
which  shall  be  payable  as  wages  on  the  eighth  day  after 
the  injured  employe  leaves  work  as  the  result  of  the  in- 
jury, and  weekly  thereafter,  which  weekly  indemnity 
shall  be  as  follows  : 

PAYMENT  IN  TOTAL  DISABILITY. 

(a)  If  the  accident  causes  total  disability,  sixty-five 
per  cent  of   the   average   weekly   earnings   during   the 
period  of  such  total  disability;  provided,  that  if  the  dis- 
ability is  such  as  not  only  to  render  the  injured  employe 
entirely  incapable  of  work,  but  also  so  helpless  as  to  re- 
quire the  assistance  of  a  nurse,  the  weekly  indemnity 
during  the  period  of  such  assistance  shall  be  increased 
to  one  hundred  per  cent  of  the  average  weekly  earnings. 

PAYMENT  IN  PARTIAL  DISABILITY. 

(b)  If  the  accident  causes  partial  disability,  sixty- 
five  per  cent  of  the  weekly  loss  in  wages  during  the 
period  of  such  partial  disability. 

(c)  If  the  disability  caused  by  the   accident   is   at 
times  total  and  at  times  partial,  the  weekly  indemnity 
during  the  periods  of  each  such  total  or  partial  disability 
shall  be  in  accordance  with  said  subsections  (a)  and  (b) 
respectively. 

Note  by  board — The  object  in  providing  for  the  payment  in  weekly 
installments  is  to  furnish  the  compensation  to  the  injured  person  at 
the  same  times  that  the  family  has  been  in  the  habit  of  receiving 
support  and  to  insure  the  payment  as  needed.  A  deviation  in  this 
rule  can  be  made  in  the  case  of  death  benefits,  when  the  Industrial 
Accident  Board  is  convinced  that  it  is  to  the  best  interests  of  the  par- 
ties to  order  that  the  amount  be  paid  in  a  lump  sum  or  otherwise. 


659  CALIFORNIA    ACT.  §  263 

The  scale  of  compensation  as  here  established  divides  the  burden 
between  the  employer  and  the  employe  upon  a  basis  of  65  and  35  per 
cent,  of  the  loss  accruing  from  the  injury.  Except  that  where  dis- 
ability is  total  and  the  injured  employe  is  so  helpless  as  to  require 
the  service  of  a  nurse,  it  is  increased  during  such  period  to  100  per 
cent. 

It  is  urged  that  a  compensation  scheme  should  shift  the  entire 
burden  upon  the  industry.  This,  however,  is  open  to  the  following 
objections : 

(1)  To  shift  this  entire  burden  to  the  employer  before  he  has 
the  opportunity  to  provide  for  it  in  the  cost  of  production  would  not 
be  fair  to  him; 

(2)  When  the  employe  must  bear  a  part  of  the  burden  there 
will  not  be  a  tendency  to  malinger. 

One  of  the  chief  aims  of  compensation  legislation  is  to  provide 
something  for  every  injury  of  more  than  a  temporary  character  with- 
out unnecessarily  burdening  the  industry.  The  maximum  may  seem 
insufficient  in  case  of  total  disability  or  death,  but,  as  to  the  em- 
ployes as  a  whole,  this  is  more  than  balanced  by  the  certainty  of 
some  compensation  for  every  serious  injury. 

(d)  Said  subsections  (a),  (b)  and  (c)  shall  be  sub- 
ject to  the  following  limitations : 

Aggregate  disability  indemnity  for  a  single  injury 
shall  not  exceed  three  times  the  average  annual  earnings 
of  the  employe. 

If  the  period  of  disability  does  not  last  more  than 
one  week  from  the  day  the  employe  leaves  work  as  the 
result  of  the  accident  no  indemnity  whatever  shall  be 
recoverable. 

If  the  period  of  disability  lasts  more  than  one  week 
from  the  day  the  employe  leaves  work  as  the  result  of 
the  accident,  no  indemnity  shall  be  recoverable  for  the 
first  week  of  the  period  of  such  disability. 

The  aggregate  disability  period  shall  not,  in  any 
event  extend  beyond  fifteen  years  from  the  date  of  the 
accident. 

Note  by  board — (1)  Aggregate  liability  for  a  single  injury  Is 
limited  to  three  times  the  average  annual  wage  earnings.  At  law 
the  recovery  is  unlimited,  so  that  only  by  electing  compensa- 
tion can  an  employer  know  the  maximum  amount  that  he  will 
be  called  upon  to  pay  to  compensate  his  employes  for  injuries 
sustained. 


§  263     .WORKMEN'S  COMPENSATION  AND  INSURANCE.     660 

(2)  No  indemnity  is  allowed   for  the  first  week's  disability. 
As   medical   and    surgical   treatment    are   furnished    in    all    cases, 
!t  seems  fair  that  in  minor  accidents  not  causing  disability  for 
more  than  a  week   and  not  inflicting   serious  hardship,  no   com- 
pensation should  be  allowed. 

(3)  The    aggregate    disability    period    is    limited    to    fifteen 
years,  even  though  the  total  amount  paid  during  that  time  may 
not  equal  three  times  the  annual  wage  earnings. 

(3)  The  death  of  the  injured  employe  shall  not  affect 
the  obligation  of  the  employer  under  subsections  (1) 
and  (2)  of  this  section,  so  far  as  his  liability  shall  have 
accrued  and  become  payable  at  the  time  of  the  death, 
but  the  death  shall  be  deemed  the  termination  of  dis- 
ability, and  the  employer  shall  thereupon  be  liable  for 
the  following  death  benefits  in  lieu  of  any  further  dis- 
ability benefits,  provided  that  such  death  was  approxi- 
mately caused  by  the  accident  causing  such  disability: 

Ifote  by  board — The  purpose  of  compensation  legislation  is  to 
provide  compensation  for  the  injured  employe  and  for  his  de- 
pendents when  his  death  results  from  accident.  The  theory  be- 
ing that  if  death  results  from  any  other  cause,  the  industry  is 
under  no  obligation  to  care  for  his  dependents.  The  fact  that 
the  employe  was  receiving  compensation  at  the  time  of  his  death 
does  not  give  his  dependents  any  additional  right. 

Where  the  accident  does  not  cause  immediate  death,  but  is 
the  proximate  cause  thereof  within  a  period  of  fifteen  years  there- 
after, the  death  benefits  provided  in  this  section  are  to  be  paid  in 
lieu  of  all  other  liabilities.  The  liability  of  the  employer  can  not,  in 
any  event,  be  greater  than  three  times  the  annual  wage  earnings, 
and  in  case  of  death  from  this  amount  is  to  be  deducted  any  pay- 
ment previously  made  to  the  injured  person  as  compensation. 

(a)  In  case  the  deceased  employe  leaves  a  person  or 
persons  wholly  dependent  upon  him  for  support,  the 
death  benefit  shall  be  a  sum  sufficient  when  added  to  the 
benefits  which  shall,  at  the  time  of  death,  have  accrued 
and  become  payable  under  the  provisions  of  subsection 
(2)  of  this  section  to  make  the  total  compensation  for 
the  injury  and  death  (exclusive  of  the  benefit  provided 
for  in  subsection  (1),  equal  to  three  times  his  annual 
average  earnings,  not  less  than  $1,000  nor  more  than 


66 1  CALIFORNIA    ACT.  §  263 

$5,000,  the  same  to  be  payable,  unless  and  until  the  in- 
dustrial accident  board  shall  otherwise  direct,  in  weekly 
installments  corresponding  in  amount  to  the  weekly 
earnings  of  the  employe. 

ITote  by  board— The  maximum  limit  is  the  same  as  for  compen- 
sation. Where  the  accident  does  not  immediately  result  in  death, 
but  was  the  proximate  cause  of  death,  the  limit  is  the  same;  that 
is,  the  total  amount  paid  as  weekly  indemnity  and  the  death  benefit 
together  shall  not  exceed  three  times  the  annual  earnings.  Death 
benefits  may  be  ordered  paid  in  weekly  installments,  such  as  the 
dependents  were  accustomed  to  receive  or  in  such  other  manner  as 
may,  in  the  discretion  of  the  board,  seem  most  beneficial  to  the  de- 
pendents. 

PERSONS  PARTIALLY  DEPENDENT. 

(b)  In  case  the   deceased   employe  leaves  no   one 
wholly  dependent  on  him  for  support,  but  one  or  more 
persons  partially  dependent  therefor,  the  death  benefit 
shall  be  such  percentage  of  three  times  such  average 
annual  earnings  of  the  employe  as  the  annual  amount 
devoted  by  the  deceased  to  the  support  of  the  person  or 
persons  so  partially  dependent  upon  him  for  support 
bears  to  such  average  earnings,  the  same  to  be  payable, 
unless  and  until  the  industrial  accident  board  shall  other- 
wise direct,  in  weekly  installments  corresponding  to  the 
weekly  earnings  of  the  employe;  provided,  that  the  total 
compensation  for  the  injury  and  death  (exclusive  of  the 
benefit  provided  for  in  said  subsection  (1)  shall  not  ex- 
ceed three  times  such  average  annual  earnings). 

3fote  by  board — When  the  deceased  leaves  no  person  wholly  de- 
pendent, the  death  benefit  is  to  be  apportioned  among  those  partially 
dependent  in  proportion  to  the  aid  or  contribution  made  by  the  de- 
ceased to  their  support.  In  an  action  at  law,  the  heirs  would  be 
entitled  to  full  damages. 

(c)  In  the  event  that  the  accident  shall  have  approxi- 
mately caused  permanent  disability,  either  total  or  par- 
tial, and  the  employe  shall  die  within  fifteen  years  after 
the  date  of  the  accident,  liability  for  the  death  benefits 
provided  for  in  said  subsections  (a)  and  (b)  respectively 


§  263     WORKMEN'S  COMPENSATION  AND  INSURANCE.     662 

shall  exist  only  where  the  accident  was  the  approximate 
cause  of  death  within  said  period  of  fifteen  years. 

(d)  If  the  deceased  employe  leaves  no  person  de- 
pendent upon  him  for  support,  and  the  accident  approxi- 
mately causes  death,  the  death  benefit  shall  consist  of 
the  reasonable  expenses  of  his  burial  not  exceeding 
$100. 

Note  by  board — If  death  does  not  result  within  fifteen  years  the 
employer  is  not  liable  for  any  death  benefit. 

Section  9.  (1)  The  weekly  earning  referred  to  in 
section  (8)  shall  be  one  fifty-second  of  the  average  an- 
nual earnings  of  the  employe;  average  annual  earnings 
shall  not  be  taken  at  less  than  $333.33,  nor  more  than 
$1,666.66,  and  between  said  limits  shall  be  arrived  at  as 
follows : 

(a)  If  the  injured  employe  has  worked  in  such  em- 
ployment, whether  for  the  same  employer  or  not,  during 
substantially  the  whole  of  the  year  immediately  preced- 
ing his  injury,  his  average  annual  earnings  shall  consist 
of  three  hundred  times  the  average  daily  wage  or  salary 
which  he  has  earned  as  such  employe  during  the  days 
when  so  employed. 

(b)  If  the  injured  employe  has  not  so  worked  in  such 
employment  during  substantially  the  whole  of  such  im- 
mediately preceding  year,  his  "average  annual  earnings 
shall  consist  of  three  hundred  times  the  average  daily 
wage  or  salary  which  an  employe  of  the  same  class  work- 
ing substantially  the  whole  of  such  immediately  preced- 
ing year  in  the  same  or  a  similar  employment  in  the 
same  or  a  neighboring  place  shall  have  earned  during 
the  days  when  so  employed. 

(c)  In  cases  where  the  foregoing  methods  of  arriv- 
ing at  the  average  annual  earnings  of  the  injured  em- 
ploye can  not  reasonably  and  fairly  be  applied,  such  an- 
nual earnings  shall  be  taken  at  such  sum  as  having  re- 
gard to  the  previous  earnings  of  the  injured  employe, 


663  CALIFORNIA    ACT.  §  263 

and  of  other  employes  of  the  same  or  most  similar  class, 
working  in  the  same  or  most  similar  employment  in  the 
same  or  neighboring  locality,  shall  reasonably  represent 
the  average  earning  capacity  of  the  injured  employe  at 
the  time  of  the  injury  in  the  employment  in  which  he 
was  working  at  such  time. 

(d)  The  fact  that  an  employe  has  suffered  a  prev- 
ious disability,  or  received  compensation  therefor,  shall 
not  preclude  him  from  compensation  for  a  later  injury, 
or  for  death  resulting  therefrom,  but  in  determining 
compensation  for  the  later  injury,  or  death  resulting 
therefrom,  his  average  annual  earnings  shall  be  such 
sum  as  will  reasonably  represent  his  annual  earning  ca- 
pacity at  the  time  of  the  later  injury,  and  shall  be  ar- 
rived at  according  to  the  previous  provisions  of  this  sec- 
tion. 

(2)  The  weekly  loss  in  wages  referred  to  in  section 
8,  shall  consist  of  the  difference  between  the  average 
weekly  earnings  of  the  injured  employe,  computed  ac- 
cording to  the  provisions  of  this  section,  and  the  weekly 
amount  which  the  injured  employe,  in  the  exercise  of 
reasonable  diligence,  will  probably  be  able  to  earn,  the 
same  to  be  fixed  as  of  the  time  of  the  accident,  but  to  be 
determined  in  view  of  the  nature  and  extent  of  the  in- 
jury. 

Note  by  board — The  foregoing  sections  provide  the  manner  in 
which  the  wage  earning  shall  be  ascertained  and  compensation  com- 
puted. Under  ordinary  circumstances  there  will  be  no  dispute  as  to 
the  wage  paid.  The  compensation  is  to  be  computed  with  regard  to 
the  employe's  earning  power  at  the  time  of  the  accident. 

(3)  The  following  shall  be  conclusively  presumed 
to  be  solely  and  wholly  dependent  for  support  upon  a 
deceased  employe: 

(a)  A  wife  upon  a  husband. 

(b)  A  husband  upon  a  wife  upon  whose  earnings 
he  is  partially  or  wholly  dependent  at  the  time  of  her 
death. 


§  263     WORKMEN'S  COMPENSATION  AND  INSURANCE.     664 

(c)  A  child  or  children  under  the  age  of  eighteen 
years  (or  over  said  age,  but  physically  or  mentally  in- 
capacitated from  earning),  upon  the  parent  with  whom 
he  or  they  are  living  at  the  time  of  the  death  of  such 
parent,  there  being  no  surviving  dependent  parent.  In 
case  there  is  more  than  one  child  thus  dependent,  the 
death  benefit  shall  be  divided  equally  among  them.  In 
all  other  cases  questions  of  entire  or  partial  dependency 
shall  be  determined  in  accordance  with  the  fact,  as  the 
fact  may  be  at  the  time  of  the  death  of  the  employe,  and 
in  such  other  cases  if  there  is  more  than  one  person 
wholly  dependent,  the  death  benefit  shall  be  divided 
equally  among  them  and  persons  partially  dependent,  if 
any,  shall  receive  no  part  thereof,  and  if  there  is  more 
than  one  person  partially  dependent,  the  death  benefit 
shall  be  divided  among  them  according  to  the  relative 
extent  of  their  dependency. 

(4)  Questions  as  to  who  constitute  dependents  and 
the  extent  of  their  dependency  shall  be  determined  as 
of  the  date  of  the  death  of  the  employe,  and  their  right 
to  any  death  benefit  shall  become  fixed  as  of  such  time, 
irrespective  of  any  subsequent  change  in  conditions, 
and  the  death  benefit  shall  be  directly  recoverable  by 
and  payable  to  the  dependent  or  dependents  entitled 
thereto  or  their  legal  guardians  or  trustees. 

Note  by  board — Certain  persons  above  mentioned  are  conclusively 
presumed  to  be  dependents.  All  other  questions  of  dependency  are 
to  be  determined  as  other  questions  of  fact.  In  determining  the 
question  of  dependency,  the  status  is  fixed  as  of  the  date  of  the  death, 
not  as  of  the  date  of  the  accident. 

Section  10.  No  claim  to  recover  compensation  un- 
der this  act  shall  be  maintained  unless  within  thirty  days 
after  the  occurrence  of  the  accident  which  is  claimed  to 
have  caused  the  injury  or  death,  notice  in  writing,  stat- 
ing the  name  and  the  address  of  the  person  injured,  the 
time  and  the  place  where  the  accident  occurred,  and 
the  nature  of  the  injury,  and  signed  by  the  person  in- 


665  CALIFORNIA    ACT.  §263 

jured  or  some  one  in  his  behalf,  or  in  case  of  his  death, 
by  a  dependent  or  some  one  in  his  behalf,  shall  be  served 
upon  the  employer  by  delivering  to  and  leaving  with 
him  a  copy  of  such  notice  or  by  mailing  to  him  by  regis- 
tered mail  a  copy  thereof  in  a  sealed  and  posted  en- 
velope addressed  to  him  at  his  last  known  place  of  busi- 
ness or  residence.  Such  mailing  shall  constitute  com- 
plete service.  Provided,  however,  that  any  payment  of 
compensation  under  this  act,  in  whole  or  in  part,  made 
by  the  employer  before  the  expiration  of  said  thirty  days 
shall  be  equivalent  to  the  notice  herein  required,  and 
provided  further,  that  the  failure  to  give  any  such. notice, 
or  any  defect  or  inaccuracy  therein,  shall  not  be  a  bar 
to  recovery  under  this  act  if  it  is  found  as  a  fact  in  the 
proceedings  for  collections  of  the  claim  that  there  was 
no  intention  to  mislead  the  employer,  and  that  he  was 
not  in  fact  misled  thereby,  and  provided  further  that  if 
no  such  notice  is  given  and  no  payment  of  compensation 
made,  within  one  year  from  the  date  of  the  accident,  the 
right  to  compensation  therefor  shall  be  wholly  barred. 

Note  by  board — Notice  of  the  injury  must  be  in  writing,  and  it 
must  contain  name  and  address  of  the  person  injured,  time  and 
place  of  the  accident,  and  nature  of  the  injury.  It  must  be  signed 
by  the  injured  person,  a  dependent  or  some  one  in  his  behalf,  and 
must  be  served  "personally"  upon  the  employer  or  sent  to  his  last 
known  address  by  registered  mail,  WITHIN  THIRTY  DAYS  AFTER 
THE  ACCIDENT. 

Section  11.  Wherever  in  case  of  injury  the  right 
to  compensation  under  this  act  would  exist  in  favor  of 
any  employe,  he  shall,  upon  the  written  request  of  his 
employer,  submit  from  time  to  time  to  examination  by 
a  regular  practicing  physician,  who  shall  be  provided 
and  paid  for  by  the  employer,  and  shall  likewise  submit 
to  examination  from  time  to  time  by  any  regular  physi- 
cian selected  by  said  industrial  accident  board,  or  any 
member  or  examiner  thereof.  The  employe  shall  be  en- 
titled to  have  a  physician  provided  and  paid  for  by  him- 
self present  at  any  such  examination.  So  long  as  the 


§  263    WORKMEN'S  COMPENSATION  AND  INSURANCE.    666 

employe,  after  such  written  request  of  the  employer, 
shall  refuse  to  submit  to  such  examination,  or  shall  in 
any  way  obstruct  the  same,  his  right  to  begin  or  main- 
tain any  proceeding  for  the  collection  of  compensation 
shall  be  suspended,  and  if  he  shall  refuse  to  submit  to 
such  examination  after  direction  by  the  board,  or  any 
member  or  examiner  thereof,  or  shall  in  any  way  ob- 
struct the  same,  his  right  to  the  weekly  indemnity  which 
shall  accrue  and  become  payable  during  the  period  of 
such  refusal  or  obstruction,  shall  be  barred.  Any  physi- 
cian who  shall  make  or  be  present  at  any  such  examina- 
tion may  be  required  to  testify  as  to  the  results  thereof. 

Note  by  board — The  employe  must  permit  physicians  sent  by  the 
employer  or  by  the  Industrial  Accident  Board  to  examine  him  at 
any  time  after  the  accident.  He  may  have  his  own  physician  there 
also,  if  he  wishes.  If  he  refuses  to  submit  to  such  examination,  his 
right  to  compensation  shall  be  suspended  or  barred.  The  physician 
of  the  employer  and  of  the  employe  may  be  required  to  testify  as  to 
the  result  of  such  examination. 

Section  12.  Any  dispute  or  controversy  concerning 
compensation  under  this  act,  including  any  in  which  the 
state  may  be  a  party,  shall  be  submitted  to  a  board  con- 
sisting of  three  members,  which  shall  be  known  as  the 
industrial  accident  board.  Within  thirty  days  before 
this  act  shall  take  effect,  the  governor,  by  and  with  the 
advice  and  consent  of  the  senate,  shall  appoint  a  mem- 
ber who  shall  serve  two  years,  and  another  who  shall 
serve  three  years,  and  another  who  shall  serve  four 
years.  Thereafter  such  three  members  shall  be  ap- 
pointed and  confirmed  for  terms  of  four  years  each. 
Vacancies  shall  be  filled  in  the  same  manner  for  the  un- 
expired  term.  Each  member  of  the  board,  before  en- 
tering upon  the  duties  of  his  office,  shall  take  the  oath 
prescribed  by  the  constitution.  A  majority  of  the  board 
shall  constitute  a  quorum  for  the  exercise  of  any  of  the 
powers  or  authority  conferred  by  this  act,  and  an  award 
by  a  majority  shall  be  valid.  In  case  of  a  vacancy,  the 
remaining  two  members  of  the  board  shall  exercise  all 


667  CALIFORNIA   ACT.  §  263 

the  powers  and  authority  of  the  board  until  such  va- 
cancy is  filled.  Each  member  of  the  board  shall  receive 
an  annual  salary  of  three  thousand  six  hundred  dollars. 

Note  by  board — It  is  expected  that  the  employer  and  the  em- 
ploye will  attempt  to  settle  their  differences  without  recourse  to  the 
board,  since  the  amount  of  compensation  to  be  paid  is  fixed  by 
the  act,  that  in  a  large  majority  of  cases  such  settlements  will  be 
effected. 

If  this  fails,  then  the  board  will  hold  a  hearing,  and  from  the 
evidence  produced  relative  to  the  facts  connected  with  the  accident, 
injury  or  wages,  determine  upon  such  award  as  seems  just.  It  is  the 
purpose  of  the  board  to  afford  quick  relief  at  a  minimum  of  expense 
to  the  litigants,  and,  therefore,  the  hearing  will  be  had  at  the  place 
of  the  accident  or  such  other  place  as  may  be  convenient  for  the 
parties. 

One  of  the  chief  advantages  in  creating  the  board  to  administer 
the  act  is  that  by  so  doing  uniformity  of  ruling  is  assured,  which 
would  not  be  the  case  were  the  act  administered  by  individuals  in 
various  localities. 

Section  13.  The  board  shall  organize  by  choosing 
one  of  its  members  as  chairman.  Subject  to  the  provi- 
sions of  this  act,  it  may  adopt  its  own  rules  of  procedure 
and  may  change  the  same  from  time  to  time  in  its  dis- 
cretion. The  board,  when  it  shall  deem  it  necessary  to 
expedite  its  business,  may  from  time  to  time  employ 
one  or  more  expert  examiners  for  such  length  of  time  as 
may  be  required.  It  may  also  appoint  a  secretary  and 
such  clerical  help  as  it  may  deem  necessary.  It  shall  fix 
the  compensation  of  all  assistants  so  appointed. 

Note  by  board — The  Industrial  Accident  Board  organized  by  elect- 
Ing  A.  J.  Pillsbury  chairman,  and  appointing  Aaron  L.  Sapiro,  of 
San  Francisco,  secretary. 

Whenever  required  to  expedite  matters,  the  board  will  appoint  an 
examiner,  with  power  to  make  a  preliminary  investigation,  and  to 
take  such  testimony  as  may  be  obtained.  The  rules  adopted  by  the 
board  immediately  follow  the  annotations  to  the  act. 

OFFICE  OF  THE  BOARD  AND  TRAVELING  EXPENSES. 

Section  14.  The  board  shall  keep  its  office  at  the 
city  of  San  Francisco,  and  shall  be  provided  by  the  sec- 
retary of  state  with  a  suitable  room  or  rooms,  necessary 


§  263     WORKMEN'S  COMPENSATION  AND  INSURANCE.     668 

office  furniture,  stationery,  and  other  supplies.  The 
member  of  the  board  and  its  assistants,  shall  be  entitled 
to  receive  from  the  state  their  actual  and  necessary  ex- 
penses while  traveling  on  the  business  of  the  board,  but 
such  expenses  shall  be  sworn  to  by  the  person  who  in- 
curred the  same,  and  be  approved  by  the  chairman  of 
the  board,  before  payment  is  made.  All  salaries  and  ex- 
penses authorized  by  this  act  shall  be  audited  and  paid 
out  of  the  general  funds  of  the  state  the  same  as  other 
general  state  expenses  are  audited  and  paid. 

Note  by  board — The  office  of  the  board  is  located  in  Room  907, 
Royal  Insurance  building,  Pine  and  Sansome  streets,  San  Francisco. 

Section  15.  Upon  the  filing  with  the  board  by  any 
party  in  interest  of  an  application  in  writing  stating  the 
general  nature  of  any  dispute  or  controversy  concerning 
compensation  under  this  act,  it  shall  fix  a  time  for  the 
hearing  thereof,  which  shall  not  be  more  than  forty  days 
after  the  filing  of  such  application.  The  board  shall 
cause  notice  of  such  hearing  to  be  given  to  each  party 
interested  by  service  of  such  notice  on  him  personally 
or  by  mailing  a  copy  thereof  to  him  at  his  last  known 
postoffice  address  at  least  ten  days  before  such  hearing. 
Such  hearing  may  be  adjourned  from  time  to  time  in 
the  discretion  of  the  board,  and  hearings  shall  be  held 
at  such  places  as  the  board  shall  designate.  Either  party 
shall  have  the  right  to  be  present  at  any  hearing,  in  per- 
son or  by  attorney  or  any  other  agent,  and  to  present 
such  testimony  as  shall  be  pertinent  to  the  controversy 
before  the  board,  but  the  board  may,  with  or  without 
notice  to  either  party,  cause  testimony  to  be  taken,  or 
inspection  of  the  premises  where  the  injury  occurred  to 
be  had,  or  the  time  books  and  pay  roll  of  the  employer 
to  be  examined  by  any  member  of  the  board  or  any 
examiner  appointed  by  it,  and  may  from  time  to  time, 
direct  any  employe  claiming  compensation  to  be  ex- 
amined by  a  regular  physician;  the  testimony  so  taken 


669  CALIFORNIA    ACT.  §  263 

and  the  results  of  any  such  inspection  or  examination, 
to  be  reported  to  the  board  for  its  consideration  upon 
final  hearing.  The  board,  or  any  member  thereof,  or 
any  examiner  appointed  thereby  shall  have  power  and 
authority  to  issue  subpoenas  to  compel  the  attendance 
of  witnesses  or  parties,  and  the  production  of  books, 
papers,  or  records,  and  to  administer  oaths.  Obedience 
to  such  subpoenas  shall  be  enforced  by  the  superior 
court  of  any  county,  or  city  and  county. 

Note  by  board — This  section  relates  to  the  procedure  to  be  fol- 
lowed by  the  Industrial  Accident  Board,  in  determining  controversies 
submitted  to  it. 

The  pleadings  required  will  be  simple,  and  only  for  the  purpose 
of  enabling  each  party  and  the  board  to  understand  the  exact  na- 
ture of  the  dispute  in  controversy. 

Section  16.  After  final  hearing  by  said  board,  it 
shall  make  and  file  (1)  its  findings  upon  all  facts  in- 
volved in  the  controversy,  and  (2)  its  award,  which 
shall  state  its  determination  as  to  the  rights  of  the 
party. 

Section  17.  Either  party  may  present  a  certified 
copy  of  the  award  to  the  superior  court  for  any  county 
or  city  and  county,  whereupon  said  court  shall,  without 
notice,  render  a  judgment  in  accordance  therewith, 
which  judgment,  until  and  unless  set  aside  as  herein- 
after provided,  shall  have  the  same  effect  as  though  duly 
rendered  in  an  action  duly  tried  and  determined  by 
said  court,  and  shall,  with  the  like  effect,  be  entered  and 
docketed. 

Section  18.  The  findings  of  fact  made  by  the  board 
acting  within  its  powers,  shall,  in  the  absence  of  fraud, 
be  conclusive,  and  the  award,  whether  judgment  has 
been  rendered  thereon  or  not,  shall  be  subject  to  review 
only  in  the  manner  and  upon  the  grounds  following: 
within  thirty  days  from  the  date  of  the  award,  any  party 
aggrieved  thereby  may  file  with  the  board  an  applica- 
tion in  writing  for  a  review  of  such  award,  stating  gen- 


§  263     WORKMEN'S  COMPENSATION  AND  INSURANCE.     670 

erally  the  grounds  upon  which  such  review  is  sought ; 
within  thirty  days  thereafter  the  board  shall  cause  all 
documents  and  papers  on  file  in  the  matter,  and  a  tran- 
script of  all  testimony  which  may  have  been  taken  there- 
in, to  be  transmitted  with  their  findings  and  award  to 
the  clerk  of  the  superior  court  of  that  county  or  city  and 
county  wherein  the  accident  occurred ;  such  application 
for  a  review  may  thereupon  be  brought  on  for  hearing 
before  said  court  upon  such  record  by  either  party  on 
ten  days'  notice  to  the  other,  subject,  however,  to  the 
provisions  of  law  for  a  change  of  the  place  of  trial  or 
the  calling  of  another  judge.  Upon  such  hearing  the 
court  may  confirm  or  set  aside  such  award,  and  any 
judgment  which  may  theretofore  have  been  rendered 
thereon,  but  the  same  shall  be  set  aside  only  upon  the 
following  grounds: 

(1)  That  the  board  acted  without  or  in  excess  of 
its  powers. 

(2)  That  the  award  was  procured  by  fraud. 

(3)  That  the  findings  of  fact  by  the  board  do  not 
support  the  award. 

Note  by  board — When  an  appeal  Is  desired,  it  must  be  taken  with- 
in thirty  days  from  the  date  of  the  award.  The  review  does  not 
allow  a  trial  by  the  Superior  Court  of  the  case  presented  to  the  In- 
dustrial Accident  Board.  The  facts  found  by  the  board  are  con- 
clusive, and  the  court  in  its  review  can  only  apply  the  law  to  the 
facts  as  found  by  the  board,  and  can  not  set  aside  the  award  ex- 
cept upon  the  grounds  stated  in  this  section.  The  board  will  defend 
its  findings  and  awards  upon  such  review. 

Section  19.  Upon  the  setting  aside  of  any  award  the 
court  may  recommit  the  controversy  and  remand  the 
record  in  the  case  to  the  board  for  further  hearing  or 
proceedings,  or  it  may  enter  the  proper  judgment  upon 
the  findings,  as  the  nature  of  the  case  shall  demand.  An 
abstract  of  the  judgment  entered  by  the  trial  court  upon 
the  review  of  any  award  shall  be  made  by  the  clerk  there- 
of upon  the  docket  entry  of  any  judgment  which  may 
theretofore  have  been  rendered  upon  such  award,  and 


CALIFORNIA    ACT.  §  263 

transcripts  of  such  abstract  may  thereupon  be  obtained 
for  like  entry  upon  the  dockets  of  the  courts  of  other 
counties,  or  city  and  county. 

Section  20.  Any  party  aggrieved  by  a  judgment  en- 
tered upon  the  review  of  any  award,  may  appeal  there- 
from within  the  time  and  in  the  manner  provided  for 
an  appeal  from  the  orders  of  the  superior  court ;  but  all 
such  appeals  shall  be  placed  on  the  calendar  of  the  Su- 
preme court  and  brought  to  a  hearing  in  the  same  man- 
ner as  criminal  causes  on  such  calendar. 

Note  by  board — Any  party  may  appeal  from  the  judgment  of  the 
Superior  Court  sustaining  or  modifying  the  award,  and  such  ap- 
peal goes  directly  to  the  Supreme  Court  of  the  state  and  is  placed  at 
the  head  of  the  calendar.  This  preference  saves  many  months  of 
delay  and  insures  a  speedy  settlement  of  the  controversy. 

Section  21.  No  fees  shall  be  charged  by  the  clerk 
of  any  court  for  the  performance  of  any  official  service 
required  by  this  act,  except  for  the  docketing  of  judg- 
ments and  for  certified  copies  of  transcripts  thereof.  In 
proceedings  to  review  an  award,  costs  as  between  the 
parties  shall  be  allowed  or  not  in  the  discretion  of  the 
court. 

Note  by  board — It  is  expected  that  the  compensation  provisions 
of  the  act  will  be  administered  practically  without  cost  to  the  liti- 
gants. 

Section  22.  No  claim  for  compensation  under  this 
act  shall  be  assignable  before  payment,  but  this  provi- 
sion shall  not  affect  the  survival  thereof;  nor  shall  any 
claim  for  compensation,  or  compensation  awarded,  ad- 
judged or  paid,  be  subject  to  be  taken  for  the  debts  of 
the  party  entitled  thereto. 

Note  by  board — If  the  claim  were  assignable,  the  employ^  might 
be  tempted  to  sell  it  for  an  inadequate  sum  of  ready  cash,  thus  de- 
feating one  of  the  purposes  of  compensation  legislation. 

The  claim  for  the  compensation  that  has  accrued  at  the  time  of 
death  of  the  injured  employe  survives,  and  his  estate  may  collect 
this  amount  just  as  it  may  collect  other  debts  due  at  the  time  of  his 
death.  The  right  of  survival  is  in  addition  to  the  death  benefits 
allowed  the  dependents. 


§  263     WORKMEN'S  COMPENSATION  AND  INSURANCE.     672 

Section  23.  A  claim  for  compensation  for  the  in- 
jury or  death  of  any  employe,  or  any  award  or  judg- 
ment entered  thereon,  shall  be  entitled  to  a  preference 
over  the  other  debts  of  the  employer  if  and  to  the  same 
extent  as  the  wages  of  such  employe  shall  be  so  pre- 
ferred; but  this  section  shall  not  impair  the  lien  of  any 
judgment  entered  upon  any  award. 

Note  by  board — Claims  to,  or  awards  for,  compensation  have  a 
preference  over  other  debts  of  an  employer  to  the  same  extent  that 
claims  for  wages  have,  but  this  preference  can  not  impair  the  lien  of 
any  judgment  entered  upon  a  previous  award  of  compensation  for 
injury. 

Section  24.  Nothing  in  this  act  shall  affect  the  or- 
ganization of  any  mutual  or  other  insurance  company, 
or  any  existing  contract  for  insurance  or  employers'  lia- 
bility, nor  the  right  of  the  employer  to  insure  in  mutual 
or  other  companies,  in  whole  or  in  part,  against  such  lia- 
bility, or  against  the  liability  for  the  compensation  pro- 
vided for  by  this  act,  or  to  provide  by  mutual  or  other 
insurance,  or  by  arrangement  with  his  employes,  or 
otherwise,  for  the  payment  to  such  employes,  their  fam- 
ilies, dependents,  or  representatives,  of  sick,  accident  or 
death  benefits,  in  addition  to  the  compensation  pro- 
vided for  by  this  act.  But  liability  for  compensation  un- 
der this  act  shall  not  be  reduced  or  affected  by  any  in- 
surance, contributions,  or  other  benefit  whatsoever  due 
to  or  received  by  the  person  entitled  to  such  compen- 
sation, and  the  person  so  entitled  shall,  irrespective  of 
any  insurance  or  other  contract,  have  the  right  to  re- 
cover the  sarne  directly  from  the  employer,  and  in  ad- 
dition thereto,  the  right  to  enforce  in  his  own  name,  in 
the  manner  provided  in  this  act,  the  liability  of  any  in- 
surance company,  which  may,  in  whole  or  in  part,  have 
insured  the  liability  for  such  compensation;  provided, 
however,  that  payment  in  whole  or  in  part  of  such  com- 
pensation by  either  the  employer  or  the  insurance  com- 
pany, shall,  to  the  extent  thereof,  be  a  bar  to  recovery 


673  CALIFORNIA   ACT.  §  263 

against  the  other  cf  the  amount  so  paid,  and  provided 
further,  that  as  between  the  employer  and  the  insur- 
ance company,  payment  by  either  directly  to  the  em- 
ploye, or  to  the  person  entitled  to  compensation  shall 
be  subject  to  the  conditions  of  the  insurance  contract 
between  them. 

Note  by  board — The  employer  is  primarily  liable  to  the  injured 
employe  for  the  compensation  provided  by  this  act,  regardless  of  any 
arrangement  that  the  employer  may  make  with  a  third  person  to 
carry  this  risk.  The  legislature,  recognizing  the  necessity  for  an 
individual  to  guard  against  this  risk,  does  not  take  away  any  right 
that  he  heretofore  had  to  insure  against  this  risk  in  mutual  or  other 
companies. 

This  section  does  not,  however,  authorize  the  formation  of  any 
insurance  companies  not  already  authorized  by  law. 

Under  this  section,  the  employe  is,  in  effect,  made  a  party  to  the 
contract  of  insurance,  and  may  enforce,  in  his  own  name,  the  liability 
of  any  insurance  company  which  has  insured  against  the  compensa- 
tion risk.  Under  the  rules  of  the  Industrial  Accident  Board,  the 
employe  may  join  the  employer  and  insurance  company  in  his  ap- 
plication for  relief. 

The  law  recognizes  the  great  benefits  to  employes  of  sick,  acci- 
dent, and  death  benefit  societies,  voluntarily  put  into  operation  by 
many  large  employers,  and  does  not  attempt  to  interfere  with  them. 

The  employe  may,  if  he  so  desires,  take  out  insurance  at  his  own 
expense  in  his  own  name,  and,  in  any  such  event,  the  benefit  paid 
does  not  affect  the  right  to  compensation  or  diminish  the  amount 
thereof.  To  diminish  the  compensation  in  such  instances  would  be 
just  as  unfair  as  it  would  be  to  increase  the  compensation  when  the 
employer  is  insured. 

Section  25.  Every  contract  for  the  insurance  of  the 
compensation  herein  provided  for,  or  against  liability 
therefor,  shall  be  deemed  to  be  made  subject  to  the  pro- 
visions of  this  act,  and  provisions  thereof  inconsistent 
with  this  act  shall  be  void.  No  company  shall  enter  into 
any  such  contract  of  insurance  unless  such  company 
shall  have  been  approved  by  the  commissioner  of  insur- 
ance, as  provided  by  law. 

Note  by  board — Under  this  section    any    contract    of  insurance 
against  compensation  is  made  subject  to  all  the  provisions  of  this 
act,  including  the  rights  and  liabilities  of  the  insurance  company 
created  under  the  preceding  section. 
43— BOTD  w  c 


§  263     WORKMEN'S  COMPENSATION  AND  INSURANCE.     674 

Before  any  company  can  enter  Into  a  contract  of  insurance  against 
the  compensation  risk,  it  must  first  be  approved  by  the  Insurance 
Commissioner,  as  provided  by  law.  The  purpose  of  this  provision 
is  to  guard  against  the  formation  of  companies  not  strong  enough 
financially  to  carry  the  risk. 

Section  26.  The  making  of  a  lawful  claim  against 
an  employer  for  compensation  under  this  act  for  the 
injury  or  death  of  his  employe  shall  operate  as  an  as- 
signment of  any  assignable  cause  of  action  in  tort  which 
the  employe  or  his  personal  representative  may  have 
against  any  other  party  for  such  injury  or  death,  and 
such  employer  may  enforce  in  his  own  name  the  liability 
of  such  other  party. 

Note  by  board — Where  the  injury  is  caused  by  the  negligence  or 
wrongdoing  of  a  third  person,  the  injured  workman  has  his  choice  of 
one  of  two  remedies. 

(1)  He  may  proceed  at  law  and  maintain  an  action  in  tort  to 
recover  damages  from  the  person  whose  fault  is  responsible  for  the 
accident,  or 

(2)  He  may  elect  the  compensation  provided  by  this  act.    In  the 
event  the  injured  employe  elects  compensation,  the  employer,  who 
must  pay  the  compensation,  succeeds  to  the  rights  of  the  injured 
employe  and  may  maintain  an  action  at  law  in  his  own  name  to  re- 
cover damages  from  the  person  directly  responsible  for  the  injury. 

Section  27.  The  board  shall  cause  to  be  printed  and 
furnished  free  of  charge  to  any  employer  or  employe 
such  blank  forms  as  it  shall  deem  requisite  to  facilitate 
or  promote  the  efficient  administration  of  this  act ;  it 
shall  provide  a  proper  record  book  in  which  shall  be 
entered  and  indexed  the  name  of  every  employer  who 
shall  file  a  statement  of  election  under  this  act,  and  the 
date  of  the  filing  thereof,  and  a  separate  book  in  which 
shall  be  entered  and  indexed  the  name  of  every  em- 
ployer who  shall  file  his  withdrawal  of  such  election, 
and  the  date  of  the  filing  thereof;  and  a  book  in  which 
shall  be  recorded  all  awards  made  by  the  board;  and 
such  other  books  or  records  as  it  shall  deem  required  by 
the  proper  and  efficient  administration  of  this  act;  all 
such  records  to  be  kept  in  the  office  of  the  board.  Upon 


6/5  CALIFORNIA    ACT.  §  263 

the  filing  of  a  statement  of  election  by  an  employer  to 
become  subject  to  the  provisions  of  this  act,  the  board 
shall  forthwith  cause  notice  of  the  fact  to  be  given  to 
his  employes,  by  posting  and  keeping  continuously  post- 
ed in  a  public  and  conspicuous  place  such  notice  thereof 
in  the  office,  shop,  or  place  of  business  of  the  employer, 
or  by  publishing,  or  in  such  other  manner  as  the  board 
shall  deem  most  effective,  and  the  board  shall  cause  no- 
tice to  be  given  in  like  manner  of  the  filing  of  any  with- 
drawal of  such  election;  but  notwithstanding  the  failure 
to  give,  or  the  insufficiency  of,  any  such  notice,  knowl- 
edge of  all  filed  statements  of  election  and  withdrawals 
of  election,  and  of  the  time  of  the  filing  of  the  same, 
shall  conclusively  be  imputed  to  all  employes. 

Note  by  board — The  Industrial  Accident  Board  will  provide  all 
notices  and  forms  and  will  furnish  any  information  as  to  the  act 
upon  request.  By  their  rules,  appended  hereto,  the  board  calls  at- 
tention to  the  formal  requirements  under  the  law.  In  order  to  fa- 
cilitate and  promote  the  efficient  administration  of  the  act,  it  is 
essential  that  the  forms  adopted  by  the  board  should  be  used  when- 
ever applicable. 

Notices  must  be  posted  as  indicated,  but  knowledge  of  withdrawal 
and  election  is  imputed  to  employes,  even  should  the  notices  not  be 
posted  and  kept  posted  as  directed. 

Section  28.  Nothing  in  this  act  contained  shall  be 
construed  as  impairing  the  right  of  parties  interested, 
after  the  injury  or  death  of  an  employe,  to  compromise 
and  settle  upon  such  terms  as  they  may  agree  upon,  any 
liability  which  may  be  claimed  to  exist  under  this  act 
on  account  of  such  injury  or  death,  nor  as  conferring 
upon  the  dependents  of  any  injured  employe  any  inter- 
est which  he  may  not  divert  by  such  settlement  or  for 
which  he  or  his  estate  shall,  in  the  event  of  such  settle- 
ment by  him,  be  accountable  to  such  dependents  or  any 
of  them. 

Note  by  board — Compromises  and  settlements  between  parties  in 
Interest,  the  employer  and  the  injured  employe  or  dependents,  are 
permitted  after  the  injury  or  death  of  an  employe. 

Section  29.     The  sum  of  fifty  thousand  dollars  is 


§  263     WORKMEN'S  COMPENSATION  AND  INSURANCE.     676 

hereby  appropriated  out  of  any  moneys  in  the  state 
treasury,  not  otherwise  appropriated,  to  be  used  by  the 
industrial  accident  board  in  carrying  out  the  purposes 
of  this  act,  and  the  controller  is  hereby  directed  to  draw 
his  warrant  on  the  general  fund  from  time  to  time  in 
favor  of  said  industrial  accident  board  for  the  amounts 
expended  under  its  direction,  and  the  treasurer  is  here- 
by authorized  and  directed  to  pay  the  same. 

Section  30.  All  acts  or  parts  of  acts  inconsistent 
with  this  act  are  hereby  repealed. 

§  264.     Reports  of  industrial  accidents. 

Section  1.  Every  employer  of  labor  in  this  state 
shall  keep  a  full,  true  and  correct  record  of  every  per- 
sonal injury  suffered  by  his  or  its  employes,  arising  out 
of  or  in  the  course  of  the  employment,  and  resulting  in 
death,  or  in  disability  extending  over  a  period  of  a  week 
or  more.  Within  fifteen  days  after  the  happening  of  any 
such  personal  injury,  a  written  report  thereof  shall  be 
mailed  by  the  employer  to  the  industrial  accident  board 
informally  or  on  blanks  to  be  provided  by  said  board 
for  this  purpose.  The  said  report  shall  contain  the  name 
of  the  employer,  location  of  place  of  employment,  nature 
of  employment,  name,  address,  age,  nationality,  sex  and 
occupation  of  the  injured  person,  length  of  time  the  in- 
jured person  had  worked  at  the  particular  employment 
previous  to  injury,  date  and  hour  of  the  day  or  night  of 
the  accident,  the  hour  at  which  the  injured  employe  be- 
gan work  on  the  date  of  the  accident,  nature  of  the  in- 
jury, cause  of  the  injury  and  rate  of  wages  of  the  injured 
employe. 

Sec.  2.  Upon  the  termination  of  the  disability  of  the 
injured  employe  or  at  the  expiration  of  sixty  days  from 
the  date  of  the  accident,  if  the  disability  should  extend 
beyond  such  period,  the  employer  shall  mail  to  the  in- 
dustrial accident  board  a  supplemental  report  in  relation 
to  such  disability,  informally  or  on  blanks  to  be  provided 
by  said  board  for  this  purpose.  Such  report  must  con- 


677  CALIFORNIA    ACT.  §  264 

tain  complete  statements  as  to  any  claim  made  by  the 
injured  employe  for  indemnification  for  the  injury  sus- 
tained, payment  made  to  him  or  in  his  behalf  for  medical, 
surgical  or  other  care,  claim  for  compensation  or  dam- 
ages made  for  such  injuries  and  any  compromise  or  set- 
tlement of  claim  for  compensation  or  damages  entered 
into  between  the  employer  and  such  injured  employe, 
his  heirs,  dependents  or  legal  representative.  In  the 
event  that  any  payment  shall  be  made  to  such  injured 
employe,  or  his  dependents  at  any  time  thereafter,  in 
compromise  or  settlement  of  a  claim  for  compensation 
or  damages,  the  amount  of  such  payment  shall  be  forth- 
with reported  by  the  employer  to  the  industrial  accident 
board. 

Sec.  3.  Every  physician  who  attends  any  such  in- 
jured employe  shall  keep  a  record  of  his  case.  Within 
ten  days  from  the  date  of  his  first  attendance  upon  the 
injured  employe,  he  shall  mail  to  the  industrial  accident 
board  a  report,  informally  or  on  blanks  £o  be  provided 
by  the  said  board  for  this  purpose.  The  said  report 
shall  contain  the  name  and  address  of  the  employer, 
name,  address,  sex  and  age  of  the  injured  employe,  date 
of  accident,  description  of  the  injury,  probable  nature 
and  extent  of  disability.  Upon  the  termination  of  the 
disability  of  the  injured  employe  or  the  termination  of 
said  physician's  attendance  upon  his  case,  he  shall  forth- 
with mail  to  the  industrial  accident  board  a  supplemental 
report  in  relation  to  such  case  describing  the  physical 
condition  of  the  injured  employe,  his  disability,  convales- 
cence or  discharge  from  the  doctor's  care. 

Sec.  4.  Every  person,  firm,  association  or  corpora- 
tion insuring  against  the  liability  of  employers  for  dam- 
ages or  compensation  for  personal  injury  to  employes 
or  indemnifying  any  employer  for,  or  on  account  of  any 
such  liability  shall  keep  a  record  thereof,  and  shall  with- 
in the  first  five  days  of  each  and  every  month,  report  in 
writing  to  the  industrial  accident  board,  informally  or  on 


§  264     WORKMEN'S  COMPENSATION  AND  INSURANCE.     678 

blanks  to  be  provided  by  said  board  for  this  purpose, 
every  such  injury  to  employes  reported  to  it, 
every  claim  for  damages  or  compensation  for  such  injury 
filed  with  such  person,  firm,  association  or  corporation 
and  any  settlement  or  compromise  of  any  such  claim 
for  damages  or  compensation  whether  made  with  such 
injured  employe,  his  heirs,  dependents  or  legal  repre- 
sentative. 

Sec.  5.  Every  employer,  physician  or  insurance 
company,  firm  or  association,  shall  furnish  to  the  indus- 
trial accident  board  all  further  information  required  by 
it  in  order  to  constitute  a  substantially  complete  and  ac- 
curate history  of  each  injury  and  the  damages  or  com- 
pensation paid  therefor. 

Sec.  6.  The  record  required  to  be  kept  in  pur- 
suance of  the  provisions  of  this  act  shall  at  all  times  be 
open  to  inspection  of  the  industrial  accident  board  or 
any  member  thereof,  or  any  examiner  appointed  thereby. 
Any  statement  contained  in  such  report  shall  not  be  ad- 
missible as  evidence  in  any  action  arising  out  of  the 
death  or  injury  of  any  employe  by  reason  of  the  accident 
reported. 

Sec.  7.  It  shall  be  unlawful  for  any  person,  firm, 
corporation,  agent  or  officer  of  a  firm  or  corporation  to 
fail,  neglect  or  refuse  to  comply  with  any  of  the  provis- 
ions of  this  act.  Any  person,  firm,  corporation,  agent  or 
officer  of  a  firm  or  corporation  that  violates  or  omits  to 
comply  with  any  of  the  provisions  of  this  act,  shall  be 
guilty  of  a  misdemeanor  for  each  and  every  offense  and 
shall  be,  upon  conviction  thereof,  punishable  by  fine  of 
not  less  than  ten  dollars  or  more  than  one  hundred  dol- 
lars or  by  imprisonment  for  not  more  than  thirty  days, 
or  by  both  such  fine  and  imprisonment. 

Sec.  8.  Nothing  in  this  act  shall  apply  to  employers 
of  labor  engaged  in  farming,  dairying,  agricultural  or 
horticultural  pursuits,  in  poultry  raising  or  domestic 
service. 


679  CALIFORNIA    ACT.  §  265 

§  265.  Rules  of  practice  of  the  industrial  accident 
board  of  California. 

The  following  rules  shall  go  into  immediate  effect 
under  the  provisions  of  Chapter  399,  Laws  1911,  and 
shall  govern  in  any  matter  or  proceeding  relating  to  the 
administration  of  said  act  by  the  industrial  accident 
board : 

RULE  I— PRELIMINARY. 

Chapter  399,  Laws  1911,  may  be  cited  as  the  "Em- 
ployers' Liability  Act,"  and  these  rules  as  the  "Indus- 
trial Accident  Board  Rules."  All  words  and  phrases 
used  in  these  rules  shall  have  the  same  meaning  as  is 
given  to  the  same  words  and  phrases  in  sections  3  to  31 
of  the  "Employers'  Liability  Act."1 

RULE  II— OFFICE  OF  INDUSTRIAL  ACCIDENT  BOARD. 

The  office  of  the  Industrial  Accident  Board  is  hereby 
established  at  Room  907,  Royal  Insurance  Building, 
Pine  and  Sansome  streets,  San  Francisco.  Such  office 
shall  be  open  during  such  hours  as  are  fixed  by  law  for 
the  transaction  of  public  business.  The  board  may  from 
time  to  time  hold  public  session  in  such  other  places  in 
the  state  as  convenience  may  require. 

RULE  III— POSTING  OF  NOTICES. 

Employers  shall  immediately  post,  and  keep  posted, 
all  notices  required  to  be  posted  by  the  Industrial  Acci- 
dent Board,  in  conspicuous  places  in  their  offices  and 
works  where  such  notices  are  most  likely  to  be  seen  and 
read  by  their  employes. 

RULE  IV— REPORTS. 

Employers  and  physicians  attending  injured  em- 
ployes shall,  within  ten  days  after  the  happening  of  an 
accident  causing  a  loss  of  industrial  time  lasting  more 
than  one  week,  make  a  full  report  thereof  to  the  Indus- 
trial Accident  Board.  In  any  case  where  a  compromise 
of  liability  for  accident  is  made  directly  by  the  employer 
i  See  §  263. 


§  265     WORKMEN'S  COMPENSATION  AND  INSURANCE.     680 

and  employes,  a  full  report  of  such  compromise  shall  be 
immediately  made  by  the  employer  to  the  Industrial  Ac- 
cident Board. 

RULE  V— PARTIES  TO  PROCEEDINGS. 

When  a  controversy  arises  concerning  any  matter 
over  which  the  Industrial  Accident  Board  has  jurisdic- 
tion, any  party  to  the  controversy  may  apply  to  the  board 
for  relief.  The  party  making  such  application  shall  be 
known  as  the  "applicant."  All  other  persons  necessary 
to  enable  the  board  effectively  and  completely  to  adjudi- 
cate upon  and  settle  all  questions  involved  shall  be  made 
parties  to  the  application  and  shall  be  known  as  the 
"defendants." 

An  application  on  behalf  of  the  dependents  of  a  de- 
ceased workman  for  the  settlement  of  a  controversy 
may  be  made  by  the  legal  personal  representatives  (if 
any)  of  the  deceased  workman  on  behalf  of  such  de- 
pendents or  by  the  dependents  themselves.  All  such 
dependents  shall  be  joined  in  the  application  either  as 
applicants  or  defendants. 

An  application  for  the  settlement  of  a  controversy 
respecting  medical  attendance  or  the  burial  expense  of 
a  workman  who  leaves  no  dependents  shall  be  made  by 
the  legal  representatives  (if  any)  of  the  deceased  work- 
man. If  there  are  no  such  personal  representatives,  the 
application  may  be  made  by  any  creditor  to  whom  any 
such  expenses  are  due,  and  all  other  such  creditors 
known  to  the  applicant  must  be  joined  as  respondents. 
If  the  amount  awarded  is  not  sufficient  for  the  payment 
of  such  expenses  in  full,  it  shall  be  divided  in  proportion 
to  the  respective  amounts  found  to  be  due. 

RULE  VI— JOINDER  OF  PARTIES. 

All  persons  may  be  joined  as  applicants  in  whom 
any  right  to  any  relief  in  respect  of  or  arising  out  of  the 
same  transaction  or  series  of  transactions  is  alleged  to 
exist. 


68 1  CALIFORNIA    ACT.  §  265 

All  persons  may  be  joined  as  defendants  against 
whom  the  right  to  any  relief  is  alleged  to  exist,  whether 
jointly,  severally,  or  in  the  alternative,  and  the  board 
will  of  its  own  motion  order  that  any  additional  party 
or  parties  be  joined,  when  it  deems  their  presence  nec- 
essary. 

RULE  VII— PLEADINGS. 

(1)  Application.     The  applicant  shall  file  a  written 
application  for  relief  with  the  Industrial  Accident  Board, 
containing  the  names  of  all  parties,  a  general  statement 
of  the  claim  in  controversy,  the  facts  relating  thereto 
and  of  the  relief  sought  to  be  obtained.    The  board  will 
thereupon  fix  a  time  and  place  for  the  hearing  thereof, 
which  shall  not  be  more  than  forty  (40)  days  after  such 
filing  and  will  serve  a  copy  of  such  application,  together 
with  the  notice  of  hearing,  upon  each  adverse  party. 
Either  party  shall  have  the  right  to  be  present  at  any 
hearing,  in  person  or  by  attorney  or  any  other  agent, 
and  present  such  testimony  as  shall  be  pertinent  to  the 
controversy. 

(2)  Answer.     When  any  defendant  desires  to  dis- 
claim any  interest  in  the  subject-matter  of  the  claim  in 
controversy,  or  considers  that  the  application  is  in  any 
respect  inaccurate  or  incomplete  or  desires  to  bring  any 
fact,  paper  or  document  to  the  attention  of  the  board  as 
a  defense  to  the  claim  or  otherwise,  he  must,  within  ten 
days  after  the  service  of  the  application,  file  with  or  mail 
to  the  board  his  answer,  setting  forth  the  particulars  in 
which  the  application  is  inaccurate  or  incomplete  and 
the  facts  upon  which  he  intends  to  rely.    A  copy  thereof 
.must  likewise  be  served  upon  each  party  to  the  pro- 
ceedings.   Any  material  allegation  contained  in  the  ap- 
plication and  not  controverted  in  the  answer  will  be 
deemed  to  be  admitted. 

RULE  VIII— SERVICE  OF  PLEADINGS. 

Any  pleading  or  document  may  be  served  either  by 
delivering  to  and  leaving  with  the  person  to  be  served,  a 


§  265     WORKMEN'S  COMPENSATION  AND  INSURANCE.     682 

copy  thereof,  or  by  mailing  to  such  person,  by  United 
States  registered  mail  a  copy  theieof  in  a  sealed  enve- 
lope, with  the  postage  thereon  fully  prepaid,  addressed 
to  such  person  at  his  last  known  place  of  business  or 
residence. 

Where  a  pleading  or  document  is  served  by  mail,  it 
shall,  unless  the  contrary  be  proved,  be  deemed  to  have 
been  served,  at  the  time  when  the  letter  containing  the 
same  would  have  been  delivered  in  the  ordinary  course 
of  post.  Proof  of  such  mailing  shall  be  prima  facie 
proof  of  service. 

RULE  IX— AWARDS. 

An  award  may  be  rendered  in  favor  of  or  against 
any  one  or  more  of  the  applicants  or  defendants,  ac- 
cording to  their  respective  rights  and  liabilities.  In 
every  award  the  compensation  to  be  paid  to  each  person 
shall  be  set  forth  separately. 

RULE  X— EXAMINER. 

Whenever  convenience  may  require,  the  Industrial 
Accident  Board  will  appoint  an  examiner,  whose  duty 
it  shall  be  to  aid  the  board  in  making  settlements  be- 
tween employers  and  employes,  conduct  investigations, 
take  testimony,  and  to- make  report  of  any  and  all  mat- 
ters relating  to  the  claim  in  controversy  to  the  board. 
The  board  may  at  any  time,  and  with  or  without  notice 
to  either  party,  cause  testimony  to  be  taken,  or  any 
other  investigation  to  be  made. 

RULE  XI— DEPOSITIONS. 

Depositions  may  be  taken  before  any  notary  public 
or  other  officer  authorized  to  administer  oaths,  and, 
when  so  taken,  used  upon  any  hearing  where  the  con- 
venience of  the  witnesses  requires.  Such  depositions 
shall  be  taken  upon  notice  in  the  same  manner  as  in 
courts  of  record. 

RULE  XII— STENOGRAPHIC  REPORTER. 

Either  party  may,  upon  payment  of  the  costs  at- 
tendant thereon,  require  that  the  testimony  produced 


683  CALIFORNIA    ACT.  §  265 

at  any  hearing  be  taken  down  and  transcribed  by  a 
shorthand  reporter. 

RULE  XIII— AMENDMENTS. 

The  board,  or  any  member  thereof,  may  at  any  time, 
with  or  without  notice,  upon  good  cause  shown,  permit 
any  amendment  to  any  pleading  or  open  up  any  default. 

The  board  may  amend  or  modify  or  vacate  any  order 
or  award  upon  motion  of  either  party  or  upon  its  own 
motion.  The  moving  party  shall  serve  upon  all  other 
parties  to  the  proceeding  a  notice  of  such  motion  five 
days  prior  to  the  time  when  the  same  is  to  be  heard, 
unless  otherwise  ordered  by  the  board  or  a  member 
thereof. 

RULE  XIV.    EXTENSION  OF  TIME. 

The  board,  or  any  member  thereof,  may,  either  with 
or  without  notice,  grant  extensions  of  time  within  which 
to  comply  with  any  rule  upon  good  cause  shown,  and 

may  likewise  grant  adjournments  of  hearings. 

• 

RULE  XV.    STIPULATIONS. 

Parties  to  a  controversy  may  stipulate  the  facts  in 
writing,  and  the  board  may  thereupon  make  its  order  or 
award  based  upon  such  stipulation. 

RULE  XVI.    EXCEPTIONS. 

At  any  hearing  had  before  the  board,  or  before  any 
examiner  appointed  by  it,  a  note  shall  be  made  of  any 
question  of  law  raised  or  exception  taken  and  of  the 
facts  in  evidence  in  relation  thereto. 

RULE  XVII.    APPEALS. 

Any  party  aggrieved  may,  within  thirty  (30)  days 
from  the  date  of  the  award,  file  with  the  Industrial  Ac- 
cident Board  an  application,  in  writing,  for  a  review  of 
such  award,  stating  generally  the  grounds  upon  which 
a  review  is  sought,  the  points  upon  which  he  relies,  and 
the  facts  in  evidence  relating  thereto.  A  copy  of  such 
application  shall  at  the  same  time  be  served  by  the  ap- 


§  266     WORKMEN'S  COMPENSATION  AND  INSURANCE.     684 

pellant  upon  all  adverse  parties.  The  adverse  party  or 
parties  may,  within  ten  (10)  days  thereafter,  file  with 
the  board  an  answer  to  such  application  for  review, 
stating  generally  his  objections,  his  points,  and  the  facts 
in  evidence  in  relation  thereto.  The  board  will  there- 
upon prepare  and  certify  a  transcript  of  the  testimony 
taken  and  transmit  the  same,  together  with  all  docu- 
ments and  papers  on  file  in  the  matter,  to  the  superior 
court. 

It  is  hereby  ordered  that  the  foregoing  rules  be,  and 
the  same  are,  adopted  as  the  rules  governing  the  Indus- 
trial Accident  Board,  and  for  the  regulation  of  practice, 
and  that  the  same  go  into  effect  forthwith. 

§  266.  The  formal  procedure  under  the  act. — 
The  blank  forms  which  thus  far  have  been  devised  by 
the  Industrial  Accident  Commission  of  California  in  con- 
nection with  their  administration  of  that  actla  are  dis- 
tributed naturally  into  the  following  groups:  Group  I, 
blank  forms  required  to  be  used  by  employers;  group  II, 
blank  forms  required  to  be  used  by  employes;  group  III, 
blank  forms  required  to  be  used  at  hearings  before  the 
board;  group  IV,  blank  forms  required  to  be  used  by 
physicians;  group  V,  blank  forms  required  to  be  used 
by  casualty  companies. 

GROUP  I. 

§  267.  Forms  to  be  used  by  employers. — The  blank 
forms  required  to  be  used  by  employers  covered  by  the 
act  are  entitled  and  designated  as  follows:  (a)  Employ- 
er's written  acceptance  of  the  provisions  of  Employers' 
Liability  Act;  (b)  Employer's  withdrawal  of  acceptance 
of  Employers'  Liability  Act;  (c)  Notice  that  employer 
has  accepted  the  compensation  provisions  of  the  Em- 
ployers' Liability  Act;  (d)  Employers'  first  report  of 
accident  to  employe;  (e)  Form  of  employer's  supple- 
mental report  of  accident  to  employe,  and  set  forth  in 
the  order  named  in  the  sections  that  immediately  follow: 
ia  See  §§  12  to  20. 


685  CALIFORNIA    ACT.  §  268 

§  268.     Form  of  employers'  written  acceptance  of 
the  provisions  of  the  act.     (a)2 

To  the  Industrial  Accident  Board  of  the  State  of  California: 

Please  take  notice  that  the  undersigned,  an  employer  of  labor  in 
the  State  of  California  hereby  accepts  the  provisions  of  an  act  of 
the  Legislature  of  the  State  of  California,  entitled,  "An  act  relating 
to  the  liability  of  employers  for  injuries  or  death  sustained  by  their 
employes,  providing  for  compensation  for  the  accidental  injury  of 
employes,  establishing  an  industrial  accident  board,  making  an  ap- 
propriation therefor,  defining  its  powers  and  providing  for  a  review 
of  its  awards,"  approved  April  8,  1911. 

Number  of  employes 

Location  of  place  of  employment 

Nature  of  employment 

Dated  at ,  Cal.,  this 

day  of ,  19__ 

Signed: (Seal) 

P.  O.  Address 

City  

The  filing  of  the  foregoing  acceptance  subjects  the  employer  to 
the  compensation  provisions  of  said  law  for  the  term  of  one  year 
from  the  date  of  filing  and  thereafter,  without  further  act  on  his 
part,  for  successive  terms  of  one  year  each,  unless  such  employer 
shall,  at  least  sixty  days  prior  to  the  expiration  of  the  term,  file  a 
written  notice  of  the  withdrawal  of  this  acceptance  in  the  office  of 
the  Industrial  Accident  Board  (Employers'  Liability  Act,  Section  5). 

§  269.     Form  of  employer's  withdrawal  of  accept- 
ance of  provisions  of  the  act.     (b)3 

To  the  Industrial  Accident  Board  of  the  State  of  California : 

Please  take  notice  that  the  undersigned,  an  employer  of  labor  in 

the  State  of  California,  hereby  withdraws election 

to  be  subject  to  the  provisions  of  an  act  of  the  Legislature  of  the 
State  of  California,  entitled,  "An  act  relating  to  the  liability  of  em- 
ployers for  injuries  or  death  sustained  by  their  employes,  providing 


2  This  notice  must  be  signed  and  dated  by  employer  and  filed 
with  the  Industrial  Accident  Board.     If  employer  is  a  corporation, 
this  notice  must  be  signed  by  its  proper  oflicers  thereunto  duly  au- 
thorized and  the  corporate  seal  affixed. 

3  This  notice,  to  be  effective  for  the  next  succeeding  year,  must  be 
filed  In  the  office  of  the  Industrial  Accident  Board  at  least  sixty  days 
prior  to  the  expiration  of  the  first  year  from  the  date  of  filing  the 
notice  of  acceptance,  or  sixty  days  prior  to  the  expiration  of  any 
succeeding  year  (Employers'  Liability  Law,  section  5). 


§  270     WORKMEN'S  COMPENSATION  AND  INSURANCE.     686 

for  compensation  for  the  accidental  injury  of  employes,  establish- 
ing an  industrial  accident  board,  making  an  appropriation  therefor, 
denning  its  power  and  providing  for  a  review  of  its  awards,"  ap- 
proved April  8,  1911. 

Dated  at ,  Cal.,  this 

day  of ,  191__ 

Signed : ( Seal.) 

P.  O.  Address 

City  

§  270.     Form  of  notice  that  employer  has  accepted 
the  compensation  provisions  of  the  act.     (c)4 

To  all  the  employes  in  the  State  of  California  of 

You  are  hereby  notified  that  your  employer  has  this  day  filed  with 
the  Industrial  Accident  Board  of  the  State  of  California,  notice  of 
acceptance  of  the  provisions  of  Chapter  399,  Laws  of  California, 
1911  (commonly  known  as  the  "Employers'  Liability  Act"). 

You  are  further  notified  that  you  are  subject  to  the  compensa- 
tion provisions  of  said  act, 

(1)  Unless  at  the  time  of  entering  into  your  contract  of  hire, 
you  serve  notice  in  writing  on  your  employer  that  you  do  not  elect 
to  be  subject  to  such  provisions,  or 

(2)  If  your  contract  of  hire  was  made  before  the  date  hereof, 
unless  within  thirty  days  after  the  date  hereof,  you  serve  such  writ- 
ten notice  on  your  employer. 

Dated  at  San  Francisco,  this day  of ,  191— 

INDUSTRIAL  ACCIDENT  BOARD  OF  CALIFORNIA. 
A.  J.  PILLSBURY,  Chairman, 
WILL  J.  FRENCH, 
WILLIS  I.  MORRISON. 

§  271.     Form  of  employer's  first  report  of  accident 
to  employe.     (d)4a 

Use  this  form  for  First  Report  only.    A  different  form  is  provided 

for  Supplemental  Report. 

Accidents  which  disable  for  less  than  seven  calendar  days  need  not 

be  reported. 

1.    Employer. 

a.    Employer's  name 


4  This  notice  shall  be  posted  and  continuously  kept  posted  in  a 
public  and  conspicuous  place  in  the  office,  shop,  or  place  of  business 
of  the  above  named  employer.  (Employers'  Liability  Act,  Section  27.) 
4a  This  report  must  be  made  within  fifteen  days  after  the  happen- 
ing of  the  accident.  Answer  all  questions  fully.  Information  given 
herein  is  confidential.  Failure  to  report  is  a  misdemeanor. 


687  CALIFORNIA    ACT.  §  271 

b.  Main  office:   Street  and  No City  or  town 

c.  Business    

d.  Location  of  plant,  if  not  at  main  office  address 

2.    Injured  Employe. 

a.  Employe's  name  (in  full) 

b.  P.  O.  address 

c.  Sex d.  Color e.  Age 

f.  Married,  widower  or  single 

g.    Where  born h.  Speak  English? 

i.  If  not,  what  language? 

j.    Occupation  when  injured  (machinist,  carpenter,  laborer,  etc.) 

k.     In  what  department  or  branch  of  work? 

1.    Was  this  regular  occupation? 

m.    If  not,  state  regular  occupation 

n.     Length  of  experience  in  occupation  when  injured,  here 

;    elsewhere 

0.  Piece  or  time  worker? p.  Wage  (or  average  earnings) 

per  day q.  Working  days  per  week 

3.    Accident. 

a.    Date b.  Hour  of  day c.  Place 

d.  At  what  hour  did  injured  employe  begin  work  on  that  day? 

e.  Name  of  machine,  tool  or  appliance  in  connection  with  which 
accident  happened 

f.  By  what  kind  of  power  driven? 

g.  Hand  or  mechanical  feed 

h.     Part  on  which  accident  happened 

1.  How  guarded? 

j.     Describe  in  full  how  accident  happened 


k.    What  would  you  suggest  to  prevent  similar  accidents ?. 


4.    Injury. 

a.  Did  injury  result  in  death? 

b.  If  so,  give  date  of  death 

c.  Name  and  P.  O.  address  of  relative  or  friend  of  deceased. 


d.     State  exactly  what  part  of  person  injured  and  extent  of  injury— 


e.    How  much  longer  will  injured  person  be  unable  to  do  his  regu- 
lar work?  _  


§  272     WORKMEN'S  COMPENSATION  AND  INSURANCE.     688 

5.    Medical  Care. 

a.  Name  and  address  of  present  attending  physician  or  hospital  (if 
more  than  one,  give  each) 

b.  Furnished  by  employer  or  employe? 

c.  Physician  or  hospital  for  first  aid,  if  other  than  the  foregoing — 

6.    Insurance. 

a.     Did  you  carry  insurance  against  liability  for  this  accident? 


b.  If  so,  name  of  company 

c.  What  kind  of  policy — employer's  liability,  collective,  compensa- 
tion, or  other? 

7.    Remarks. 


Date  of  Report 

Made  out  by 

(If  not  member  of  firm,  state  position) . 


§  272.     Form  of  employer's  supplemental  report  of 
accident  to  employe.     (e)4b 

Do  not  use  this  form  for  first  report  of  accident.    Another  form  is 
provided  for  that  purpose. 

Date  of  report Furnished  by Position 

Employer _ 

(Name)                                         (Address) 
Employ^ 

(Name)                                         (Address) 
Accident  

(Date)  (Place) 

DISABILITY. 

(1)  If  injured  employe"  has  died,  date  and  place  of  death 

(2)  Nearest  surviving  relative 

(Name)     (Address) 

(3)  When  did  injured  employe"  return  to  work 

(4)  If  not  returned,  but  recovered,  when  did  disability  end 

(5)  If  still  disabled,  how  much  longer  is  disability  expected  to  last 


4t>  Employers  must  fill  in  and  mail  this  report  to  the  Board,  (1) 
in  all  cases  upon  termination  of  disability  of  injured  employe;  (2) 
if  disability  extends  over  more  than  sixty  days  from  date  of  accident, 
then  on  the  sixtieth  day  from  date  of  accident,  and  again  on  termin- 
ation of  disability.  The  information  contained  in  this  report  is  con- 
fidential. Failure  to  report  is  a  misdemeanor. 

Payment  in  full  settlement  of  claim,  made  at  any  time  after  filing 
of  this  report,  must  be  forthwith  reported  to  the  Board. 


689  CALIFORNIA    ACT.  §  272 

(6)  Present  condition  

(7)  Physician  now  in  attendance 

(Name)     (Address) 

(8)  Has  injury  resulted  in — 

(a)  Permanent  total  disability  (inability  to  do  any  work) 

(Specify  condition.) 

(b)  Permanent  partial  disability  (ability  to  do  some  work  but 
not  same  as  before  accident) 

(Specify  condition.) 

(c)  What  work  can  disabled  employe"  do,  and  at  what  wage 

(9)  Additional  remarks 

RELIEF  AND  INDEMNITY. 

(10)  What  payments  have  been  made  to  injured  employe,  or  on  his 

behalf,  since  date  of  accident,  on  account  of — 

(a)  Wages  (exclusive  of  amount  due  at  time  of  accident) 

(Period)  (Total  amount) 

(b)  Medical  expenses  and  other  care 

(Specify) 

(c)  Additional  indemnity 

(Specify) 

(11)  To  whom  paid 

(Name)  (Address) 

(12)  Are  payments  scheduled  above  in  full  settlement  of  claim  by 

injured  employe"   

(13)  If  not,  state  amount  and  composition  of  claim 

(Specify  fully) 

INSURANCE. 

C      1T>id  you  carry  liability  insurance  at  time  of  accident 

(a) (b) 

(Name  of  company)  (Kind  of  policy) 

(15)  What  portion  of  above  amount,  if  any,  has  been  paid  by  insur- 

ance   company? 

(16)  State  fully  what  steps  have  been  taken  to  settle  claim 


(17)  Attach  herewith  copies  of  all  agreements  of  settlement. 
(I0  Additional  remarks 


44— BOYD  w  c 


§  273     XVORKMEN'S  COMPENSATION  AND  INSURANCE.     690 

GROUP  II. 

§  273.  Forms  for  employes. — The  forms  required  to 
be  used  by  the  employes  covered  by  the  act  are  en- 
titled and  designated  as  follows:  (f),  Blank  form  of  no- 
tice by  employe  of  election  not  to  be  subject  to  the  pro- 
visions of  the  Employers'  Liability  Act,  (g),  Blank  form 
of  notice  to  employer  of  claim  for  compensation  for  in- 
jury under  Employers'  Liability  Law,  and  are  set 
forth  in  the  order  named  in  the  two  succeeding  sections. 

§  274.  Form  of  notice  by  employe  of  election  not 
to  be  subject  to  the  provisions  of  the  act.  (f)5 

To 

(Write  name  of  employer  on  above  line.) 

(Write  address  of  employer  on  above  line.) 

You  will  please  take  notice  that  the  undersigned,  now  in,  or  being 
about  to  enter,  your  employ  hereby  elects  not  to  be  subject  to  the 
provisions  of  Chapter  399,  Laws  of  California,  1911. 

Dated  at ,  Cal.,  this day 

of ,  191__. 

Signed  

P.  O.  address 

City  

§  275.  Form  of  notice  to  employer  of  claim  for 
compensation  for  injury  under  act.  (g)6 

To (Write  name  of  employer  on  this  line.) 

(Write  address  of  employer  on  this  line.) 

You  will  take  notice  that  the  undersigned  hereby  makes  claim 


5  If  employer  has  elected  to  become  subject  to  the  compensation 
provisions  of  the  act  above  referred  to,  then  the  employe  comes  un- 
der said  provisions  (1)  unless  at  the  time  of  entering  into  the  em- 
ployment, the  employe  gives  the  above  notice,  or  (2)  if  the  contract 
of  hire  was  made  before  the  date  of  the  employer's  election,  \mless 
within  thirty  (30)  days  after  such  election,  the  employe  gives  said 
notice  (Employers'  Liability  Act,  Section  7,  Sub.  2). 

6  The  foregoing  notice  must  be  filled  out  by  the  injured  employe 
or  some  one  in  his  behalf,  or  in  case  of  his  death,  by  a  dependent  or 
dependents  or  some  one  in  their  behalf,  and  served  upon  the  em- 
ployer by  delivering  a  copy  of  the  above  notice  to  the  employer  per- 
sonally, or  by  registered  mail  within  THIRTY  (30)  DAYS  after  the 
occurrence  of  the  accident  for  which  compensation  is  claimed  (Em- 
ployers' Liability  Act,  Section  10). 


691  CALIFORNIA    ACT.  §  276 

for  the  compensation  provided  in  Chapter  399,  Laws  of  California, 

1911,  for  injury  received  by while  in 

your  employ. 

Name  of  employe 

Post  office  address 

Relationship  to  claimant (State  whether  notice  given  by  in- 
jured person,  agent  or  dependent.) 

The  accident  occurred  on  the day  of , 

191 ,  at ,  California. 

The  nature  of  the  injury  is  as  follows 


Dated  at ,  Cal.,  this 

day  of ,  191 

Signature  

P.  O.  address 

City  

Fill  out  in  duplicate.  Deliver  personally  or  send  one  copy  by  reg- 
istered mail  to  employer  and  mail  other  copy  to  the  Industrial  Ac- 
cident Board  of  the  State  of  California,  Royal  Insurance  Building, 
San  Francisco. 


GROUP  III. 

§  276.  Forms  for  hearings  before  board. — The  blank 
forms  required  to  be  used  at  hearings  before  the  board 
are  entitled  and  designated  as  follows:  (h)  Notice  of 
filing  of  application  for  adjustment  of  claim  by  Indus- 
trial Accident  Board;  (i),  Form  of  notice  of  hearing  of 
application  for  adjustment  of  claim  before  the  Industrial 
Accident  Board;  (j),  Form  of  subpoena  for  witness  to 
appear  before  the  Industrial  Accident  Board,  and  are 
set  forth  in  the  order  named  in  the  three  succeeding  sec- 
tions : 

§  277.  Form  of  notice  of  filing  of  application  for 
adjustment  of  claim,  (h) 


Applicant—, 
vs. 


Defendant— 


§  277     WORKMEN'S  COMPENSATION  AND  INSURANCE.     692 
To  the  above-named  defendant 

You  are  hereby  notified  that  the  application  of 


.^[ 
J 


entitled  as  above  to  adjust  a  claim  for  compensation  arising  out  of 

J  injuries  sustained  by  _. 

"^  the  death  of 

(a  copy  of  which  is  attached  hereto)  has  been  filed  in  the  office  of 

the  Industrial  Accident  Board  of  the  State  of  California,  907  Royal 

Insurance  Building,  201  Sansome  Street,  San  Francisco,  California. 

In  the  event  that  you  desire  to  make  any  answer  to  the  said 
application  your  attention  is  called  to  the  following  rules  adopted 
by  this  Board,  relative  to  the  same,  to-wit: 

"RULE  VII  —  ANSWER.  When  any  defendant  desires  to  disclaim 
any  interest  in  the  subject-matter  of  the  claim  in  controversy,  or 
considers  that  the  application  is  in  any  respect  inaccurate  or  incom- 
plete or  desires  to  bring  any  fact,  paper  or  document  to  the  atten- 
tion of  the  Board  as  a  defense  to  the  claim  or  otherwise,  he  must, 
within  ten  days  after  the  service  of  the  application,  file  with  or  mail 
to  the  Board  his  answer,  setting  forth  the  particulars  in  which  the 
application  is  inaccurate  or  incomplete  and  the  facts  upon  which  he 
intends  to  rely.  A  copy  thereof  must  likewise  be  served  upon  each 
party  to  the  proceedings.  Any  material  allegation  contained  in  the 
application  and  not  controverted  in  the  answer  will  be  deemed  to  be 
admitted." 

"RULE  VIII  —  SERVICE.  Where  a  pleading  or  document  is 
served  by  mail,  it  shall,  unless  the  contrary  be  proved,  be  deemed  to 
have  been  served,  at  the  time  when  the  letter  containing  the  same 
would  have  been  delivered  in  the  ordinary  course  of  post.  Proof  of 
such  mailing  shall  be  prima  facie  proof  of  service." 

And  you  are  further  hereby  notified  that  unless  you  appear  and 
answer  within  ten  days  after  the  service  on  you  of  this  notice,  said 
Applicant  —  will  apply  to  the  Board  for  the  relief  prayed  for. 

Witness  : 
INDUSTRIAL  ACCIDENT  BOARD 

Of  the  State  of  California, 
this  __________  day  of  ______________  ,  191__ 

Member  —  Secretary. 
STATE  OF  CALIFORNIA, 


;ss: 
City  and  county  or. 

being  duly  sworn,  deposes  and 
says:  That  he  is,  and  was  at  the  times  of  the  service  of  the  papers 
herein  referred  to,  a  citizen  of  the  United  States,  over  the  age  of 
eighteen  years,  and  not  a  party  to  the  within-entitled  proceeding; 
that  he  personally  served  the  within  notice  on  the  hereinafter- 
named  defendants,  by  delivering  to  and  leaving  with  each  of  said 


693  CALIFORNIA    ACT.  §  278 

defendants  personally,  in  the  City  and  County  of , 

State  of  California,  at  the  times  set  opposite  their  respective  names 
a  copy  of  said  notice  attached  to  a  copy  of  the  complaint  referred  to 
in  said  notice. 
Names  of  Defendants  Served:  Date  of  Service: 


Subscribed  and  sworn  to  before  me  this. 
day  of ._,A.  D.  191__ 


INDUSTRIAL  ACCIDENT  BOARD 
Of  the  State  of  California. 


Us: 


INDUSTRIAL  ACCIDENT  BOARD 
Of  the  State  of  California, 
I  hereby  certify  that  I  served  the  foregoing  notice  on  the. 

day  of ,  A.  D.  191__,  on  the  defendant.,  hereinafter 

named,  by  depositing  a  copy  of  said  notice  attached  to  a  copy  of  the 
application  therein  mentioned,  in  the  United  States  mail  at 

California,  with  the  postage  thereon  fully  prepaid,  and  addressed  to 
the  said  defendants,  as  follows,  to- wit: 

Name Address 

Name Address 

Name Address 

Dated .,  A.  D.,  191— 


INDUSTRIAL  ACCIDENT  BOARD 
Of  the  State  of  California. 


§  278.    Form  of  notice  of  hearing  of  application  for 
adjustment  of  claim  (i).7 

Industrial  Accident  Board  of  the  State  of  California. 


Applicant , 

vs. 


Defendant . 

Claim  No. 

Notice  of  Hearing  of  Application  for  Adjustment  of  Claim. 


7  Either  party  shall  have  the  right  to  be  present  at  any  hearing, 
In  person  or  by  attorney  or  other  agent,  and  to  present  such  testi- 
mony as  may  be  pertinent.  (Employers'  Liability  Act,  Section  15, 
Chapter  399,  Laws  1911.) 


§  279     WORKMEN'S  COMPENSATION  AND  INSURANCE.     694 

Application  on  file  in  the  office  of  the  Industrial  Accident  Board 
of  the  State  of  California,  907  Royal  Insurance  Building,  201  San- 
some  street,  San  Francisco. 

The  People  of  the  State  of  California  Send  Greeting  to : 
,  Defendant— 

You  are  hereby  notified  that  the  application  of en- 
titled as  above,  to  adjust  a  claim  for  compensation  arising  out  of 

{injuries  sustained  by  the    death  of) has  been 

set  for  hearing  and  will  be  heard  at on  the 

day  of ,  191__,  at 

o'clock M.,  and  you  are  hereby  further  notified  that  in  default  of 

your  attendance  at  the  time  and  place  above  mentioned,  the  Indus- 
trial Accident  Board  of  the  State  of  California  will  proceed  to  hear 
and  dispose  of  the  said  application  in  the  manner  provided  by  law. 

Dated  at  San  Francisco,  California,  this day  of , 

191... 

Witness :    Industrial  Accident  Board  of  the  State  of  California. 

By ,  Member — Secretary. 

Industrial  Accident  Board  of  the  State  of  California,  ss : 

I  hereby  certify  that  I  served  the  foregoing  notice  on  the  de- 
fendant— ,  hereinafter  named,  at  the  times  set  opposite  their  re- 
spective names,  by  depositing  a  copy  of  said  notice  in  the  United 

States  mail  on  said  day  at ,  California,  with 

the  postage  thereon  fully  prepaid,  and  addressed  to  the  said  de- 
fendant  ,  as  follows,  to-wit: 

Date  of  Service. 

Name 

Address 

Name 

Address 

Dated ,  A.  D.  191 


§  279.    Form  of  subpoena  for  witness  to  appear  be- 
fore industrial  accident  board,     (j) 

Industrial  Accident  Board  of  the  State  of  California. 


Applicant—, 


vs. 


>   Subpoena. 


Defendant . 

The  People  of  the  State  of  California  Send  Greeting  to: 

We  command  you,  that  all  and  singular,  business  and  excuses 


695  CALIFORNIA    ACT.  §  279 

being  laid  aside,  you  appear  and  attend  before  the  Industrial  Acci- 
dent Board  of  the  State  of  California,  at on  the 

day  of ,  191__,  at o'clock M., 

then  and  there  to  testify  in  the  above-entitled  matter,  now  pending 

before  said  Industrial  Accident  Board,  on  the  part  of 

and  that  you  bring  with  you  and  then  and  there  produce  the  follow- 
ing described  documents,  papers,  books  and  records,  to-wit: 

and  for  a  failure  to  attend  you  will  be  deemed  guilty 

of  a  contempt  and  liable  to  pay  to  the  parties  aggrieved  all  losses 
and  damages  sustained  thereby  and  forfeit  one  hundred  dollars  in 
addition  thereto. 

Witness:     Industrial  Accident  Board  of  the  State  of  California, 
this day  of ,  A.  D.  191 


Member — Examiner. 

State  of  California,  City  and  County  of ,  ss : 

,  of  said  County,  being  duly  sworn,  says 

that  he  served  the  within  subpoena,  by  showing  the  said  within  orig- 
inal to  each  of  the  following  persons  named  therein,  and  delivered  a 
true  copy  thereof  to  each  of  said  persons,  personally,  at  the  time 
and  place  set  opposite  their  respective  names,  to-wit: 

Name.  Place.  Date. 


Subscribed  and  sworn  to  before  me  this day  of_ 

191— 


Industrial  Accident  Board  of  the  State  of  California. 

(Certificate  to  be  executed  when  subpoana  served  by  a  peace  or 
other  official.) 

I  hereby  certify  that  I  served  the  within  suboena  by  showing  the 
said  within  original  to  each  of  the  following  persons  named  therein, 
and  delivered  a  true  copy  thereof  to  each  of  the  said  persons,  per- 
sonally, at  the  time  and  place  set  opposite  their  respective  names, 
to-wit : 

Name.  Place.  Date. 


(Title  of  Officer.) 


§  280     WORKMEN'S  COMPENSATION  AND  INSURANCE.     696 

GROUP  IV. 

§  280.  Forms  to  be  used  by  physicians. — The  Board 
has  prescribed  certain  forms  for  the  reports  of  accidents 
and  are  designated  and  entitled  as  follows:  (k)  Form  of 
physician's  report  of  accident  to  employe;  (1)  Form  of 
request  for  report  of  accident;  (m)  Form  of  request  for 
fuller  report  of  accident;  (n)  Form  of  notice  to  doctor 
to  file  report,  and  are  set  forth  in  the  order  named  in  the 
succeeding  sections: 

§  281.  Form  of  physician's  report  of  accident  to 
employe,  (k)8 

Accidents  which  disable  for  less  than  seven  days  need  not  be 
reported. 
PART  I. 

To  be  filled  in  and  sent  to  Board  within  ten  days  after  first 
attendance. 

1.    Employer. 

a.  Employer's  name 

b.  Address :    Street  and  No City  or  town 

c.  Business    

2.    Injured  Employe. 

a.  Employe's  name 

b.  Address:    Street  and  No City  or  town 

c.  Sex d.  Color e.  Age f.  Occupation 

g.     Speak  English? 

h.     If  not,  what  language? 

3.    Injury  and  First  Aid. 

a.    Date  of  accident b.  Hour c.  Place 

d.  Did  you  give  first  treatment? e.  If  so,  when? 

f.    Where? g.  Were  you  called  by  employer  or  em- 
ploye"?  h.  Where  was  employe"  sent? 

i.    Nature,  location  and  extent  of  injury 

j.    How  was  injury  caused? 


8  Every  physician  who  attends  an  employe"  injured  by  accident  in 
the  course  of  employment  must  report  within  ten  days  after  first 
attendance,  and  again  upon  last  attendance.  Answer  all  questions 
as  fully  as  possible.  Information  contained  herein  is  confidential. 
Failure  to  report  is  a  misdemeanor. 


697  CALIFORNIA    ACT.  §  28 1 

k.     Any  evidence  of  contributory  cause  other  than  accident? 

1.     If  so,  what? 

4.    Treatment. 

a.  If  you  did  not  give  first  treatment,  give  date  of  first  attendance 

b.  Called  by  employer  or  employ6? 

c.  Where  was  employ^  treated? d.  Treatment,  surgical 

procedure,  etc.  

e.    Will  employe  be  able  to  resume  regular  occupation? 

f.     If  so,  approximately  when? 

Date  of  report Made  out  by  Dr 

Street  No City  or  town 


PART  II. 

This  Part  to  be  filled  in  and  sent  with  Part  I  if  the  injured  em- 
ploy6  has  then  died,  or  been  discharged,  or  the  physician's  attend- 
ance terminated  from  other  cause.  Otherwise  detach  Part  II  after 
writing  in  names  for  identification,  and  fill  in  and  send  to  Board 
after  last  attendance. 
Name  of  employer Name  of  injured  employe" 

1.    Treatment 

a.    Note  operations  and  other  material  facts  subsequent  to  those 
stated  in  Part  I__ 


b.     Was  patient  confined  to  hospital? c.  Or  home? 

d.     How  long? e.  Professional  nurse  needed? 

f.     How  long? g.  Was  patient  during  treatment  able  to 

do  any  work? 

h.    What  work  and  how  much  of  the  time? 

2.    Result. 

a.  Did  injury  result  in  death? 

b.  When? c.  Did  it  cause  any  permanent 

injury? d.  If  so,  state  its  nature  exactly 


e.  When  did  you  discharge  patient? 

f.  If  not  discharged,  when  last  attended? 

g.  Patient  able  to  return  to  regular  work? 

h.  When? 

i.  If  unable  to  do  regular  work,  able  to  do  any  other?. 

j.  When?  

Date  of  report Made  out  by  Dr 


§  282     WORKMEN'S  COMPENSATION  AND  INSURANCE.     698 

§  282.     Form  of  request  for  report  of  accident.     (1) 

The  Industrial  Accident  Board  is  informed  that  an  accident  hap- 
pened to at on  or  about , 

in  the  course  of  his  employment  by  you.  If  said  employe"  was  kept 
from  work  for  a  period  of  less  than  one  week,  simply  so  advise.  If 
he  lost  one  week  or  more,  please  make  full  report  and  state  reasons 
for  delay. 

Kindly  answer  all  pertinent  questions  on  the  blanks  enclosed. 
If  the  employe"  has  recovered,  make  both  First  and  Supplemental 
Reports  now.  If  he  is  still  disabled,  make  First  Report  now,  and 
Supplemental  Report  in  conformity  with  the  instructions  printed  on 
that  form. 

Very  truly  yours, 
Statistician. 

§  283.     Form  of  request  for  fuller  report  of  acci- 
dent,    (m) 

The  Industrial  Accident  Board  acknowledges,  with  thanks,  the 
receipt  of  your  report  of  the  accident  to Fuller  infor- 
mation being  required,  you  are  requested  to  fill  in  the  enclosed  form 
and  to  return  it  promptly. 

It  is  also  called  to  your  attention  that  reports  are  required  of  all 
industrial  accidents,  excepting  only  those  causing  disability  of  less 
than  seven  days,  which  have  happened  since  January  1st  of  this 
year.  If  you  have  omitted  to  report  any  such  accident,  please  report 
at  once. 

Additional  report  forms  have  been  mailed  to  you  under  separate 
cover.  If  more  are  needed  they  will  be  sent  on  request. 

Yours  very  truly, 

INDUSTRIAL  ACCIDENT  BOARD, 
By Statistician. 

§  284.    Form  of  notice  to  doctor  to  file  report  (n). 
Dear  Doctor: 

It  is  reported  that  you  attended 

injured  in  an  accident  on  or  about ,  1912.    Enclosed 

please  find  a  copy  of  the  statute  relative  to  reporting  industrial  acci- 
dents, and  a  blank  which  we  request  you  kindly  to  fill  in  and  return. 
No  report  is  required  if  the  injured  person  was  incapacitated  for 
less  than  one  week.  In  that  contingency,  or  if  the  report  of  your 
connection  with  the  case  is  in  error,  may  we  request  that  you  kindly 
so  advise? 

Your  prompt  attention  will  oblige, 

Sincerely  yours, 

INDUSTRIAL  ACCIDENT  BOARD, 
By_. 


699  CALIFORNIA    ACT.  §  285 

GROUP  V. 

§  285.     Forms  to  be  used  by  casualty  companies. — 

The  forms  required  to  be  used  by  casualty  companies  as 
prescribed  by  the  Industrial  Accident  Board  of  Califor- 
nia are'designated  and  entitled  as  follows:  (o)  First  ac- 
cident report  of  casualty  company;  (p)  Supplemental 
accident  report  of  casualty  company,  and  are  set  forth  in 
the  order  named  in  the  sections  that  immediately  fol- 
low: 

§  286.    Form   of  first  accident  report  of  casualty 
company,     (o) 

(Give  name  of  Company.) 
Report  only  accidents  causing  disability  of  one  week  or  more. 

Date  of  report Insurance  Co.'s  No 

Furnished  by Position 


Employer. 

(1)  Name 

(Individual  or  firm  name.) 

(2)  Address    

(St.  No.)  (City  or  town.) 

(3)  Nature  of  business  or  industry 

(4)  Insurance  classification 

(5)  Location  of  plant 

(City  or  town.) 

Employe. 

(6)  Name 

(7)  Address 

(8)  General  occupation  of  person  injured 

(Machinist,  Laborer,  etc.) 
Accident. 

(9)  Date (10)  Place 

(11)  Full  description  of  accident,  and  cause  thereof 


Injury. 

(12)  Was  accident  fatal (13)  If  fatal,  date  of  death. 

(14)  Nature  of  injury 


(15)  Probable  period  of  disability 

(Report  in  days.) 


§  287     WORKMEN'S  COMPENSATION  AND  INSURANCE.     700 
Additional  Data. 


§  287.     Form  of  supplemental  accident  report  of  cas- 
ualty company,     (p) 


(Give  name  of  Company.) 

Date  of  Report Insurance  Co.'s  No 

Furnished  by Position 

Employer. 

(1)  Name 

(2)  Address 

Employe". 

(3)  Name 

(4)  Address 

Accident. 

(5)  Date (6)  Place 

(7)  Date  of  first  report  by  Company  to  Board 

Claim  for  Indemnity. 

(8)  Date  filed  with  Co. (9)  Amount  claimed 

(10)  Composition  of  claim 

(Specify  fully  medical  expenses,  indemnification  for  wages,  dam- 
ages, death  benefits.) 

(11)  State  kind  of  policy 

(Collective,  compensation,  liability.) 

Adjustment  of  Claim. 

(12)  Has  claim  been  adjusted 

(13)  If  not,  grounds  of  resistance 

(14)  Date  suit  filed 

(15)  Date  of  adjustment (16)  Amount 

(17)  In  lump  sum  or  installments 

(If  installments,  specify.) 

(18)  Paid  to 

(19)  Whose  address  is 

(20)  Was  claim  adjusted  prior  to  termination  of  disability 

(21)  If  so,  probable  period  of  disability  from  date  of  adjustment 

Additional  Data. 


CHAPTER  XV. 

THE    NEVADA   WORKMEN'S    COMPENSATION    ACT. 

Sec.  Sec. 

288.  Nature    and    scope    of   the      290.     Text  of  the  Nevada  Work- 

act,  men's    compensation    law. 

289.  Procedure — Boards    of    ar- 
bitration. 

§  288.  Nature  and  scope  of  act. — The  law  of  this 
state  covers  nine  extra  hazardous  employments.  It  abol- 
ishes the  defense  of  fellow  servant  and  assumed  risk  and 
substitutes  the  rule  of  comparative  negligence  for  the 
old  rule  of  contributory  negligence.  The  employers  are 
made  directly  liable  for  the  compensation  and  medical 
and  surgical  aid.  The  scheme  of  administration  pro- 
vides for  local  boards  of  arbitration  whose  actions  are 
subject  to  review  by  the  courts.  Benefits  in  death  cases 
are  three  years'  earnings  with  a  minimum  of  $2,000  and 
a  maximum  of  $3,000;  and  in  case  there  are  no  depend- 
ents, $300.  The  compensation  paid  in  case  of  partial 
and  total  disability  begins  ten  days  after  the  accident 
happened  and  continues  so  long  as  the  disability  lasts 
and  is  at  the  rate  of  60  per  cent,  of  the  impairment  of  the 
injured  worker's  earning  capacity,  but  in  no  case  shall 
the  compensation  exceed  $3,000.  Medical  and  surgi- 
cal aid  are  paid  for  by  the  employer  only  in  case  an  em- 
ploye dies  of  an  injury  covered  by  the  act  and  without 
dependents. 

§  289.  Procedure — Boards  of  arbitration. — The  act 
does  not  provide  for  a  board  of  administration.  The  law 
is  presumed  to  work  automatically.  There  is  no  formal 
procedure  prescribed  in  the  act,  but  the  act  does  pro- 
vide for  the  formation  of  local  boards  of  arbitration  by 

701 


§  290     WORKMEN'S  COMPENSATION  AND  INSURANCE.     702 

the  employer  and  employe  injured  or  by  party  inter- 
ested in  a  claim  on  account  of  an  injury  covered  by  the 
law. 

§  290.  Text  of  the  Nevada  workmen's  compensation 
law. — The  Nevada  law  became  effective  July  1,  1911, 
and  provides: 

Section  1.  If  in  any  employment  to  which  this  act 
applies  personal  injury  disabling  a  workman  from  his 
regular  service  for  more  than  ten  days,  or  death  by  ac- 
cident, arising  out  of  and  in  the  course  of  employment 
is  caused  to  a  workman,  the  workman  so  injured,  or  in 
case  of  death,  the  member  of  his  family,  as  hereinafter 
defined,  shall  be  entitled  to  receive  from  his  employer, 
and  the  said  employer  shall  be  liable  to  pay,  the  com- 
pensation provided  for  in  this  act ;  provided,  that  re- 
covery hereunder  shall  not  be  barred  where  such  em- 
ploye may  have  been  guilty  of  contributory  negligence 
where  such  contributory  negligence  is  slight  and  that 
of  the  employer  is  gross  in  comparison,  but  in  which 
event  the  compensation  may  be  diminished  in  propor- 
tion to  the  amount  of  negligence  attributable  to  such 
employe,  and  it  shall  be  conclusively  presumed  that  such 
employe  was  not  guilty  of  contributory  negligence  in 
any  case  where  the  violation  of  any  statute  enacted  for 
the  safety  of  employes  contributed  to  such  employe's 
injury;  and  it  shall  not  be  a  defense:  (1)  That  the  em- 
ploye either  expressly  or  impliedly  assumed  the  risk  of 
the  hazard  complained  of;  (2)  That  the  injury  or  death 
was  caused  in  whole  or  in  part  by  the  want  of  ordinary 
or  reasonable  care  of  a  fellow-servant.  No  contract, 
rule  or  regulation  shall  exempt  the  employer  from  any 
of  the  provisions  of  the  preceding  section  of  this  act. 

Sec.  2.  "Employer"  includes  any  body  of  persons 
corporate  or  incorporate  and  the  legal  personal  repre- 
sentative of  a  deceased  employer.  "Workman"  includes 
every  person  who  is  engaged  in  an  employment  to  which 


703  NEVADA  ACT.  §  2QO 

this  act  applies,  whether  by  way  of  manual  labor  or 
otherwise,  and  where  his  agreement  is  one  of  service  or 
apprenticeship  or  otherwise,  and  is  expressed  or 
implied,  is  oral  or  in  writing.  Any  reference  to  a  work- 
man who  has  been  injured  shall,  where  the  workman  is 
dead,  include  a  reference  to  his  legal  personal  represen- 
tative or  to  his  dependents  or  other  person  to  whom 
compensation  is  payable.  "Dependents"  means  wife, 
father,  mother,  husband,  sister,  brother,  child  or  grand- 
child ;  provided,  that  they  were  wholly  or  partly  depend- 
ent upon  the  earnings  of  the  workman  at  the  time  of  his 
death. 

Sec.  3.  This  act  shall  apply  to  workmen  engaged  in 
manual  or  mechanical  labor  in  the  following  employ- 
ments within  this  state,  each  of  which  is  hereby  deter- 
mined to  be  especially  dangerous,  in  which  from  the 
nature,  condition  or  means  of  prosecution  of  the  work 
therein,  extraordinary  risks  to  the  life  and  limb  of  work- 
men engaged  therein  are  inherent,  necessarily  or  sub- 
stantially unavoidable,  and  to  each  of  which  employ- 
ments it  is  deemed  necessary  to  establish  a  new  system 
of  compensation  for  accidents  to  workmen. 

(a)  The   erection   or   demolition   of   any  bridge   or 
building  in  which  there  is,   or  in  which  the  plans  or 
specifications  require  iron  or  steel  framework; 

(b)  The  operation  of  elevators,  elevating  machines 
or  derricks  or  hoisting  apparatus  used  within  or  on  the 
outside  of  any  bridge  or  building  for  the  conveying  of 
material  in  connection  with  the  erection  or  demolition 
of  such  bridge  or  building; 

(c)  Work  on  scaffolds  of  any  kind  elevated  twenty 
feet  or  more  above  the  ground,  water  or  floor  beneath, 
in  the  erection,  construction,  painting,  alteration  or  re- 
pair of  buildings,  bridges  or  structures; 

(d)  Construction,  operation,  alteration  or  repair  of 
wires,  cables,  switchboards  or  apparatus  charged  with 
electric  currents; 


§  290     WORKMEN'S  COMPENSATION  AND  INSURANCE.     704 

(e)  The  operation  on  railroads  of  locomotives,  en- 
gines, trains,  motors  or  cars  propelled  by  gravity,  steam, 
electricity  or  other  mechanical  power,  or  the  construc- 
tion or  repairs   of  railroad  tracks   and  roadbeds   over 
which  such  locomotives,  engines,  trains,  motors,  or  cars 
are  operated; 

(f)  Construction,  operation,  alteration,  or  repairs  of 
locomotives,  engines,  trains,  motors  or  cars  in  or  about 
the   shops,   round-houses,   or   other  places,   where   the 
same  is  done ; 

(g)  Construction,    operation,   alteration   or  repairs 
to  mills,  smelters  or  mines,  including  every  shaft  or  pit 
in  the  course  of  being  sunk,  and  every  crosscut,  drift, 
station,  winze,  level  or  inclined  planes  through  which 
workmen  pass  to  and  from  work,  and  all  works,  machin- 
ery, tramways,  ladders  or  passages,  both  below  ground 
and  above  ground,  in  and  adjacent  to  any  mine; 

(h)  All  work  necessitating  dangerous  proximity  to 
gunpowder,  blasting  powder,  dynamite  or  any  other  ex- 
plosives, where  the  same  are  used  as  instrumentalities 
of  the  industry; 

(i)  The  construction  of  tunnels. 

The  employers  to  whom  this  act  shall  apply  shall  be 
any  person  or  persons,  association,  partnership  or  cor- 
poration carrying  on  any  such  industry  as  aforesaid. 

Sec.  4.  Notice  of  accidents  must  be  given  to  the 
employer  as  soon  as  practicable  after  the  happening 
thereof,  and  the  claim  for  compensation  with  respect  to 
such  accident  within  six  months  from  the  occurrence 
of  such  accident  causing  the  injury,  or  in  case  of  death, 
within  six  months  from  the  time  of  death;  provided,  al- 
ways, that  the  want  of,  or  any  defect  or  inaccuracy  in, 
such  notice  shall  not  be  a  bar  to  the  maintenance  of 
such  proceedings  if  it  is  found  in  the  proceedings  for 
settling  the  claim  that  the  employer  is  not  prejudiced 
in  his  defense  by  the  want,  defect  or  inaccuracy,  and 
that  such  want,  defect  or  inaccuracy  was  occasioned  by 


705  NEVADA  ACT.  §  290 

mistake  or  other  reasonable  cause.  Notice  in  respect  of 
an  injury  under  this  act  shall  give  the  name  and  address 
of  the  person  injured,  and  shall  state  in  ordinary  lan- 
guage the  cause  of  the  injury,  if  known,  the  date  at 
which  it  was  sustained,  and  shall  be  served  on  the 
employer,  or,  if  there  is  more  than  one  employer,  upon 
one  of  such  employers.  The  notice  may  be  served  by 
delivering  the  same  to  or  at  the  residence  or  place  of 
business  of  the  person  upon  whom  it  is  to  be  served, 
or  the  notice  may  also  be  served  by  post,  by  a  registered 
letter  addressed  to  the  person  on  whom  it  is  to  be 
served  at  his  last  known  place  of  residence  or  place  of 
business,  and  if  served  by  post  shall  be  deemed  to  have 
been  served  at  the  time  when  the  letter  containing  the 
same  would  have  been  delivered  in  the  ordinary  course 
of  post,  and  in  proving  the  service  of  such  notice  it  shall 
be  sufficient  to  prove  that  the  notice  was  properly  ad- 
dressed and  registered.  Where  the  employer  is  a  body 
of  persons,  natural  or  artificial,  the  notice  may  also  be 
served  by  delivering  the  same  at,  or  by  sending  it  by 
post  in  a  registered  letter  addressed  to  the  employer  at 
the  office,  or,  if  there  be  more  than  one  office,  any  one 
of  the  offices  of  such  body. 

.  Sec.  5.  The  amount  of  compensation  in  case  death 
results  from  injury,  or  for  death  accruing  within  five 
years  as  a  result  of  injury,  shall  be: 

(a)  If  the  workman  leave  any  person  or  persons 
who  at  the  time  of  the  accident  were  wholly  dependent 
upon  his  earnings,  a  sum  equal  to  his  earnings  in  the 
employment  of  the  same  employer  during  the  three 
years  next  preceding  the  injury,  or  the  sum  of  two 
thousand  dollars,  whichever  of  these  sums  is  the  greater, 
but  not  exceeding  in  any  case  three  thousand  dollars; 
provided,  that  the  total  sum  of  any  weekly  payments 
made  under  this  act  shall  be  deducted  from  such  sum; 
and  if  the  period  of  the  workman's  employment  by  the 
same  employer  has  been  less  than  the  said  three  years, 

45— BOYD  W  C 


§290     WORKMEN'S  COMPENSATION  AND  INSURANCE.     706 

then  the  amount  of  his  earnings  during  the  said  three 
years  shall  be  deemed  to  be  nine  hundred  and  thirty- 
six  times  his  average  daily  earnings  during  the  period 
of  his  actual  employment  under  the  same  employer; 

(b)  If  the  workman  leave  only  person  or  persons 
who  at  the  time  of  the  accident  were  partly  dependent 
upon  his  earnings,  a  sum  equal  to  50  per  cent  of  the 
amount  payable  under  the  foregoing  provisions  of  this 
section; 

(c)  If  the  workman  leave  no  person  at  the  time  of 
the  accident  who  was  dependent  upon  his  earnings,  the 
reasonable  expenses  of  his  medical  attendance  and  bur- 
ial, not  exceeding  in  all  three  hundred  dollars. 

Whatever  sum  is  payable  under  this  section  in  case 
of  death  of  the  injured  workman  shall  be  paid  to  his 
legal  representatives  for  the  benefit  of  such  dependents, 
and  if  he  leaves  no  such  dependents,  then  to  the  public 
administrator,  for  the  benefit  of  the  person  or  persons 
to  whom  the  expenses  of  medical  attendance  and  burial 
are  due. 

Sec.  6.     The   amount   of   compensation   in   case    of 
total  or  partial  disability  resulting  from  injury  shall  be  r 

(a)  A  weekly  payment  during  the  disability  begin- 
ning within  ten  days  after  the  injury,  60  per  cent  of  his 
average  weekly  earnings  in   such  employment   during 
the  previous  twelve  months  if  he  has  been  so  long  em- 
ployed, but  if  not,  then  for  any  less  period  during  which 
he  has  been  in  the  employment  of  the  same  employer,  so 
long  as  there  is  complete  disability;  and  that  proportion 
of  the  said  percentage  which  the  depleted  earning  ca- 
pacity for  that  service  bears  to  the  total  disability  when 
the  injury  is  only  partial,  but  in  no  event  shall  the  total 
of  all  payments  under  this  act  exceed  the  sum  of  three 
thousand  dollars ; 

(b)  In  addition  to  the  foregoing  payments,  if  the 
injured  person  lose  both  feet  or  both  hands,  or  one  foot 
and  one  hand,  or  both  eyes  or  one  eye  and  one  foot  or 
one  hand,  he  shall  receive,  during  a  full  period  of  five 


707  NEVADA  ACT.  §  290 

years,  40  per  cent  of  his  average  weekly  earnings,  or  if 
he  lose  one  foot,  one  hand  or  one  eye,  the  additional 
compensation  therefor  shall  be  15  per  cent  of  his  aver- 
age weekly  earnings,  the  amount  of  such  earnings  to 
be  computed  in  the  same  manner  as  the  foregoing  60 
per  cent;  provided,  that  in  no  case  shall  all  the  pay- 
ments received  herein  exceed  in  any  month  the  whole 
wages  earned  when  the  injury  occurs,  nor  shall  the 
added  percentages  continue  longer  than  to  make  all 
payments  aggregate  three  thousand  dollars. 

Sec.  7.  Any  workman  entitled  to  receive  weekly 
payments  under  this  act  is  required,  if  requested  by  the 
employer,  to  submit  himself  for  examination  by  a  duly 
qualified  medical  practitioner  or  surgeon  provided  and 
paid  for  by  the  employer,  at  a  time  and  place  reason- 
ably convenient  for  the  workman,  within  three  weeks 
after  the  injury,  and  thereafter  at  intervals  not  oftener 
than  once  in  six  weeks.  A  copy  of  the  report  of  the 
examining  physician  shall  be  furnished  to  the  workman. 
If  a  dispute  then  exists  as  to  the  workman's  condition 
or  amount  of  weekly  compensation  such  dispute  shall 
be  determined  by  arbitration  under  this  act,  or  by  judi- 
cial procedure  as  hereinafter  provided;  provided,  also, 
that  any  and  all  disputes  arising  under  this  act  may  be 
first  submitted  to  a  board  of  arbitration,  and  in  case  of 
failure  to  settle  it,  resort  may  be  had  to  courts  of  justice. 

Sec.  8.  Arbitration  proceedings  shall  be  as  follows: 
The  employer  and  the  workman  may  each  choose  one 
arbitrator,  the  two  arbitrators  thus  chosen  shall  choose 
a  third,  and  the  three  arbitrators  shall  hear  the  facts  of 
the  dispute  within  three  months  after  having  been 
chosen,  and  within  two  weeks  thereafter,  render  a  de- 
cision, which,  if  unanimous,  shall  be  final  and  binding 
on  both  parties. 

Sec.  9.  On  failure  of  the  board  of  arbitration  to 
reach  an  adjustment  of  the  dispute  above  referred  to, 
either  party  may  apply  to  a  court  of  competent  jurisdic- 
tion, and  have  an  adjudication  as  in  any  other  contro- 


§  290     WORKMEN'S  COMPENSATION  AND  INSURANCE.     708 

versy.  And  the  findings  and  judgment  of  the  court 
shall  be  conclusive  on  all  parties  concerned.  Said  courts 
may  compel  the  attendance  of  witnesses  and  the  pro- 
duction of  evidence,  as  in  all  other  cases  provided  for  by 
law,  and  the  judgment  of  said  court  may  continue  and 
diminish  or  increase  the  weekly  payments,  subject  to 
the  maximum  provided  in  this  act.  The  prevailing  party 
in  any  action,  brought  under  the  provisions  of  this  act, 
shall  be  entitled  to  his  costs  of  suit  and  reasonable  at- 
torney's fees;  provided,  that  nothing  in  this  act  shall 
operate  to  defeat  the  constitutional  right  of  appeal. 

Sec.  10.  If  any  employer  who  shall  be  the  principal, 
enters  into  a  contract  with  an  independent  contractor 
to  do  part  of  such  employer's  work,  or  if  such  contractor 
enters  into  a  contract  with  a  subcontractor  to  do  all 
or  any  part  of  the  work  comprised  in  such  contractor's 
contract  with  the  employer,  the  said  principal  shall  be 
liable  to  pay  to  any  workman  employed  in  the  execution 
of  the  work,  any  compensation  under  this  act,  which  he 
would  have  been  liable  to  pay  if  that  workman  had  been 
immediately  employed  by  him;  and  where  compensa- 
tion is  claimed  from  the  principal,  then  reference  to  the 
principal  shall  be  substituted  for  reference  to  the  em- 
ployer, except  the  amount  of  compensation  shall  be  cal- 
culated with  reference  to  the  earnings  of  the  workman 
tinder  the  contractor  or  employer  by  whom  he  is  im- 
mediately employed.  Where  such  principal  is  liable  to 
pay  compensation  he  shall  be  entitled  to  be  indemnified 
by  any  person  who  would  have  been  liable  to  pay  com- 
pensation to  the  workman  independently  of  this  sec- 
tion. Nothing  in  this  section  shall  be  construed  9.3  pre- 
venting a  workman  from  recovering  compensation  un- 
der this  act,  from  the  contractor  or  subcontractor,  in- 
stead of  the  principal;  nor  shall  this  section  apply  in 
any  case  where  the  accident  shall  occur  elsewhere  than 
on  or  in  or  about  the  premises  on  which  the  principal 
has  undertaken  to  execute  the  work  or  which  are  other- 
wise under  his  control  or  management. 


709  NEVADA   ACT.  §  2QO 

Sec.  11.  Nothing  in  this  act  contained  shall  be  held 
or  deemed  to  require  any  workman  or  his  personal  rep- 
resentatives to  proceed  under  its  terms  and  provisions 
for  the  recovery  of  compensation  of  damages  for  death 
or  accidental  injury.  But  if  the  workman  or  his  per- 
sonal representatives  shall  so  elect,  he  or  they  may  dis- 
regard the  provisions  of  this  act  and  may  pursue  any 
other  remedy  at  law  for  the  recovery  of  such  compensa- 
tion of  damages  for  or  on  account  of  such  death  or  in- 
jury. The  right  of  election  or  choice  of  remedies  shall 
be  exercised  solely  by  such  workman  or  his  representa- 
tives. 

Sec.  12.  A  claim  for  compensation  for  the  injury  or 
death  of  any  employe  or  any  reward  or  judgment  en- 
tered thereon  shall  be  entitled  to  a  preference  over  the 
other  debts  of  the  employer  if  and  to  the  same  extent 
as  the  wages  of  such  employe  shall  be  so  preferred,  but 
this  section  shall  not  impair  the  lien  of  any  judgment 
entered  upon  any  award. 

Sec.  13.  The  making  of  a  lawful  claim  against  an 
employer  for  compensation  under  this  act  for  the  injury 
or  death  of  his  employe  shall  operate  as  an  assignment 
of  any  assignable  cause  of  action  in  tort  which  the  em- 
ploye or  his  personal  representative  may  have  against 
any  other  party  for  such  injury  or  death,  and  such  em- 
ployer may  enforce  in  his  own  name  the  liability  of  such 
other  party. 

Sec.  14.  Nothing  in  this  act  contained  shall  be  con- 
strued as  impairing  the  right  of  parties  interested  after 
the  injury  or  death  of  an  employe  to  compromise  or 
settle  upon  such  terms  as  they  may  agree  upon  any  lia- 
bility which  may  be  claimed  to  exist  under  this  act  on 
account  of  such  injury  or  death,  nor  as  conferring  upon 
the  defendants  of  any  injured  employe  any  interest 
which  he  may  not  divert  by  such  settlement  or  for 
which  he  or  his  estate  shall  in  the  event  of  such  settle- 
ment by  him  be  accountable  to  such  dependents  or  any 
of  them. 


CHAPTER  XVI. 

THE  KANSAS  WORKMEN'S  COMPENSATION  ACT. 

Sec.  Sec. 

291.  Nature    and    scope   of   the      293.  Formal     procedure     under 
act.  the  act 

292.  Text  of  the  Kansas  com-  .  294.  Form   of   election   of   em- 

pensation   act.  ployer  to  come  within  the 

provisions  of  the  act. 

§  291.  Nature  and  scope  of  the  act. — The  Kan- 
sas act  is  applicable  to  certain  specified  hazardous 
employments  within  the  state  and  '  is  without  ap- 
plication to  employes  engaged  in  interstate  commerce. 
The  act  is  not  compulsory,  but  its  acceptance  is  optional 
with  the  employer  and  employe.  Where  the  act  is  ac- 
cepted by  the  employer  a  non-electing  employe  must 
serve  notice  on  his  employer  of  his  refusal  to  be  bound 
by  the  act.  A  non-electing  employer  is  denied  the  com- 
mon-law defense  of  fellow  servant  and  assumption  of 
risk  and  may  only  avail  himself  of  the  doctrine  of  com- 
parative negligence.  Where  an  employer  who  has  elect- 
ed to  be  bound  by  the  act  is  sued  by  a  non-electing  em- 
ploye, the  employer  may  avail  himself  of  the  common- 
law  defenses  and  the  doctrine  of  comparative  negligence 
unless  the  injury  was  caused  by  the  wilful  or  gross  neg- 
ligence of  such  employer,  or  of  any  managing  officer,  or 
managing  agent  of  said  employer,  or  where  under  the 
law  existing  at  the  time  of  the  death  or  injury  such  de- 
fenses are  not  available.  The  employer  is  not  liable 
for  injuries  which  do  not  disable  the  employe  for  more 
than  two  weeks  from  earning  full  wages  at  his  em- 
ployment, nor  is  he  liable  where  the  injury  results  from 
the  deliberate  intention  of  the  employe  to  cause  the  in- 
jury, or  is  due  to  his  failure  to  observe  statutory  regu- 

711 


§  292     WORKMEN'S  COMPENSATION  AND  INSURANCE.     712 

lations  provided  for  his  safety  or  the  injury  results  from 
his  intoxication.  The  compensation  is  computed  on  the 
basis  of  fifty  per  cent  of  the  impairment  of  the  working 
power  of  the  employe.  Provision  is  made  for  arbitra- 
tion in  adjusting  compensation  and  for  the  filing,  can- 
cellation, review  and  modification  of  awards;  for  the 
entry  of  judgments  and  stay  of  proceedings  upon 
awards,  and  for  the  redemption  of  liability.  The  act  is 
complicated  and  can  not  be  satisfactorily  discussed  until 
the  authorities  administering  the  same  have  developed 
the  construction  of  the  law  and  a  procedure  thereunder. 

§  292.    Text  of  the  Kansas  compensation  act. — The 

statute  is  entitled  an  act  to  provide  compensation  for 
workmen  injured  in  certain  hazardous  industries.  It  be- 
came effective  January  1,  1912,  and  provides: 

Section  1.  The  obligation. — If  in  any  employment 
to  which  this  act  applies,  personal  injury  by  accident 
arising  out  of  and  in  the  course  of  employment  is  caused 
to  a  workman,  his  employer  shall,  subject  as  hereinafter 
mentioned,  be  liable  to  pay  compensation  to  the  work- 
man in  accordance  with  this  act.  Save  as  herein  pro- 
vided, no  such  employer  shall  be  liable  for  any  injury 
for  which  compensation  is  recoverable  under  this  act; 
provided,  that  (a)  the  employer  shall  not  be  liable  under 
this  act  in  respect  of  any  injury  which  does  not  disable 
the  workman  for  a  period  of  at  least  two  weeks  from 
earning  full  wages  at  the  work  at  which  he  is  employed ; 
(b)  if  it  is  proved  that  the  injury  to  the  workman  re- 
sults from  his  deliberate  intention  to  cause  such  injury, 
or  from  his  wilful  failure  to  use  a  guard  or  protection 
against  accident  required  pursuant  to  any  statute  and 
provided  for  him,  or  a  reasonable  and  proper  guard  and 
protection  voluntarily  furnished  him  by  said  employer, 
or  solely  from  his  deliberate  breach  of  statutory  regu- 
lations affecting  safety  of  life  or  limb,  or  from  his  intoxi- 
cation, any  compensation  in  respect  to  that  injury  shall 
be  disallowed. 


713  KANSAS  ACT.  §  2Q2 

Sec.  2.  Reservation  of  liability  for  wrong  or  negli- 
gence in  certain  cases. — Where  the  injury  was  proxi- 
mately  caused  by  the  individual  negligence,  either  of 
commission  or  omission,  of  the  employer,  including  such 
negligence  of  the  directors  or  of  any  managing  officer 
or  managing  agent  of  such  employer  if  a  corporation,  or 
of  any  of  the  partners  if  such  employer  is  a  partnership, 
or  of  any  member  if  such  employer  is  an  association, 
but  excluding  the  negligence  of  competent  employes  in 
the  performance  of  their  duties  or  of  the  employer's 
duty  delegated  to  them,  the  existing  liability  of  the  em- 
ployer shall  not  be  affected  by  this  act,  but  in  such  case 
the  injured  workman,  or  if  death  results  from  such  in- 
jury, his  dependents  as  herein  defined,  if  they  unani- 
mously agree,  otherwise  his  legal  representatives,  may 
elect  between  any  right  of  action  against  the  employer 
upon  such  liability  and  the  right  to  compensation  under 
this  act. 

Sec.  3.  Reservation  of  penalties. — Nothing  in  this 
act  shall  affect  the  liability  of  the  employer  or  employe 
to  a  fine  or  penalty  under  any  other  statute. 

Sec.  4.  Subcontracting. — (a)  Where  any  person 
(in  this  section  referred  to  as  principal)  undertakes  to 
execute  any  work  which  is  a  part  of  his  trade  or  busi- 
ness or  which  he  has  contracted  to  perform  and  con- 
tracts with  any  other  person  (in  this  section  referred  to 
as  the  contractor)  for  the  execution  by  or  under  the 
contractor  of  the  whole  or  any  part  of  the  work  under- 
taken by  the  principal,  the  principal  shall  be  liable  to 
pay  to  any  workman  employed  in  the  execution  of  the 
work  any  compensation  under  this  act  which  he  would 
have  been  liable  to  pay  if  that  workman  had  been  im- 
mediately employed  by  him;  and  where  compensation 
is  claimed  from  or  proceedings  are  taken  against  the 
principal,  then,  in  the  application  of  this  act,  references 
to  the  principal  shall  be  substituted  for  references  to  the 
employer,  except  that  the  amount  of  compensation  shall 


§  292     WORKMEN'S  COMPENSATION  AND  INSURANCE.     714 

be  calculated  with  reference  to  the  earnings  of  the  work- 
man under  the  employer  by  whom  he  is  immediately 
employed,  (b)  Where  the  principal  is  liable  to  pay 
compensation  under  this  section,  he  shall  be  entitled  to 
indemnity  from  any  person  who  would  have  been  liable 
to  pay  compensation  to  the  workman  independently  of 
this  section,  and  shall  have  a  cause  of  action  therefor. 

(c)  Nothing  in  this  section  shall  be  construed  as  pre- 
venting a  workman  from  recovering  compensation  un- 
der this  act  from  the  contractor  instead  of  the  principal. 

(d)  This  section  shall  not  apply  to  any  case  where  the 
accident  occurred  elsewhere  than  on  or  in,  or  about  the 
premises  on  which  the  principal  has  undertaken  to  exe- 
cute work  or  which  are  otherwise  under  his  control  or 
management,  or  on,  in,  or  about  the  execution  of  such 
work  under  his  control  or  management,  (e)  A  principal 
contractor,  when  sued  by  a  workman  of  a  subcontractor, 
shall  have  the  right  to  implead  the  subcontractor,     (f) 
The  principal  contractor  who  pays  compensation  volun- 
tarily to  a  workman  of  a  subcontractor  shall  have  the 
right  to  recover  over  against  the  subcontractor. 

Sec.  5.  Remedies  both  against  employer  and 
stranger. — Where  the  injury  for  which  compensation  is 
payable  under  this  act  was  caused  under  circumstances 
creating  a  legal  liability  against  some  person  other  than 
the  employer  to  pay  damages  in  respect  thereof,  (a) 
The  workman  may  take  proceedings  against  that  per- 
son to  recover  damages  and  against  any  person  liable 
to  pay  compensation  under  this  act  for  such  compensa- 
tion, but  shall  not  be  entitled  to  recover  both  damages 
and  compensation;  and  (b)  If  the  workman  has  recov- 
ered compensation  under  this  act,  the  person  by  whom 
the  compensation  was  paid,  or  any  person  who  has 
been  called  on  to  indemnify  him  under  the  section  of 
this  act  relating  to  subcontracting,  shall  be  entitled  to 
indemnity  from  the  person  so  liable  to  pay  damages  as 


7J5  KANSAS  ACT. 

aforesaid,  and  shall  be  subrogated  to  the  rights  of  the 
workman  to  recover  damages  therefor. 

Sec.  6.  Application  of  the  act. — This  act  shall  apply 
only  to  employment  in  the  course  of  the  employer's 
trade  or  business  on,  in,  or  about  a  railway,  factory, 
mine  or  quarry,  electric,  building  or  engineering  work, 
laundry,  natural  gas  plant  and  all  employments  wherein 
a  process  requiring  the  use  of  any  dangerous  explosive 
or  inflammable  materials  is  carried  on,  which  is  con- 
ducted for  the  purpose  of  business,  trade  or  gain;  each 
of  which  employments  is  hereby  determined  to  be  es- 
pecially dangerous,  in  which  from  the  nature,  condition 
or  means  of  prosecution  of  the  work  therein,  extraor- 
dinary risk  to  the  life  and  limb  of  the  workman  en- 
gaged therein  are  inherent,  necessary,  or  substantially 
unavoidable,  and  as  to  each  of  which  employments  it  is 
deemed  necessary  to  establish  a  new  system  of  com- 
pensation for  injuries  to  workmen.  This  act  shall  not 
apply  in  any  case  where  the  accident  occurred  before 
this  act  takes  effect,  and  all  rights  which  have  accrued, 
by  reason  of  any  such  accident,  at  the  time  of  the  pub- 
lication of  this  act,  shall  be  saved  the  remedies  now 
existing  therefor,  and  the  court  shall  have  the  same 
power  as  to  them  as  if  this  act  had  not  been  enacted. 

Sec.  7.  This  act  shall  not  be  construed  to  apply  to 
business  or  employments  which,  according  to  law,  are  so 
engaged  in  interstate  commerce  as  to  be  not  subject  to 
the  legislative  power  of  the  state,  nor  to  persons  injured 
while  they  are  so  engaged. 

Sec.  8.  It  is  hereby  determined  that  the  necessity 
for  this  law  and  the  reason  for  its  enactment,  exist  only 
with  regard  to  employers  who  employ  a  considerable 
number  of  persons.  This  act,  therefore,  shall  only  apply 
to  employers  by  whom  fifteen  or  more  workmen  have 
been  [employed]  continuously  for  more  than  one  month 
at  the  time  of  the  accident  and  who  have  elected  or  shall 
elect  before  the  accident  to  come  within  the  provision 


§  292     WORKMEN'S  COMPENSATION  AND  INSURANCE.     716 

hereof;  provided,  however,  that  employers  having  less 
than  fifteen  workmen  may  elect  to  come  within  the  pro- 
visions of  this  act  in  which  case  his  employes  shall  be 
included  herein,  as  hereinafter  provided. 

Sec.  9.  Definitions. — In  this  act,  unless  the  context 
otherwise  requires,  (a)  "Railway"  includes  street  rail- 
ways and  interurbans;  and  "employment  on  railways" 
includes  work  in  depots,  power  houses,  round-houses, 
machine  shops,  yards,  and  upon  the  right  of  way,  and 
in  the  operation  of  its  engines,  cars  and  trains,  and  to 
employes  of  express  companies  while  running  on  rail- 
road trains,  (b)  "Factory"  means  any  premises  wherein 
power  is  used  in  manufacturing,  making,  altering,  adapt- 
ing, ornamenting,  finishing,  repairing  or  renovating  any 
article  or  articles  for  the  purpose  of  trade  or  gain  or  of 
the  business  carried  on  therein,  including  expressly  any 
brick  yard,  meat-packing  house,  foundry,  smelter,  oil 
refinery,  lime  burning  plant,  steam  heating  plant,  elec- 
tric lighting  plant,  electric  power  plant  and  water  power 
plant,  powder  plant,  blast  furnace,  paper  mill,  printing 
plant,  flour  mill,  glass  factory,  cement  plant,  artificial 
gas  plant,  machine  or  repair  shop,  salt  plant,  and  chemi- 
cal manufacturing  plant,  (c)  "Mine"  means  any  opening 
in  the  earth  for  the  purpose  of  extracting  any  minerals, 
and  all  underground  workings,  slopes,  shafts,  galleries 
and  tunnels,  and  other  ways,  cuts  and  openings  connect- 
ed therewith,  including  those  in  the  course  of  being 
opened,  sunk  or  driven;  and  includes  all  the  appurte- 
nant structures  at  or  about  the  openings  of  the  mine,  and 
any  adjoining  adjacent  work  place  where  the  material 
from  a  mine  is  prepared  for  use  or  shipment,  (d) 
"Quarry"  means  any  place,  not  a  mine,  where  stone, 
slate,  clay,  sand,  gravel  or  other  solid  material  is  dug 
or  otherwise  extracted  from  the  earth  for  the  purpose 
of  trade  or  bargain,  or  of  the  employer's  trade  or  busi- 
ness, (e)  "Electrical  work"  means  any  kind  of  work  in 
or  directly  connected  with  the  construction,  installation, 


KANSAS  ACT.  §  2Q2 

operation,  alteration,  removal  or  repair  of  wires,  cables, 
switchboards  or  apparatus,  used  for  the  transmission  of 
electrical  current,  (f)  "Building  work"  means  any  work 
in  the  erection,  construction,  extension,  decoration,  al- 
teration, repair  or  demolition  of  any  building  or  struc- 
tural appurtenance,  (g)  "Engineering  work"  means  any 
work  in  the  construction,  alteration,  extension,  repair  or 
demolition  of  a  railway  (as  hereinbefore  defined)  bridge, 
jetty,  dike,  dam,  reservoir,  underground  conduit,  sewer, 
oil  or  gas  well,  oil  tank,  gas  tank,  water  tower,  or  water 
works  (including  standpipes  or  mains),  any  caisson 
work  or  work  in  artificially  compressed  air,  any  work 
in  dredging,  pile  driving,  moving  buildings,  moving 
safes,  or  in  laying,  repairing  or  removing,  underground 
pipes  and  connections,  the  erection,  installing,  repairing, 
or  removing  of  boilers,  furnaces,  engines  and  power 
machinery,  (including  belting  and  other  connections) 
and  any  work  in  grading  or  excavating  where  shoring 
is  necessary  or  power  machinery  or  blasting  powder, 
dynamite  or  other  high  explosives  is  in  use  (excluding 
mining  and  quarrying),  (h)  "Employer"  includes  any 
person  or  body  of  persons  corporate  or  unincorporate, 
and  the  legal  representatives  of  a  deceased  employer  or 
the  receiver  or  trustee  of  a  person,  corporation,  associa- 
tion or  partnership,  (i)  "Workman"  means  any  person 
who  has  entered  into  the  employment  of  or  works  un- 
der contract  of  service  or  apprenticeship  with  an  em- 
ployer, but  does  not  include  a  person  who  is  employed 
otherwise  than  for  the  purpose  of  the  employer's  trade 
or  business.  Any  reference  to  a  workman  who  has  been 
injured  shall,  where  the  workman  is  dead,  include  a  ref- 
erence to  his  dependents,  as  hereinafter  defined,  or  to 
his  legal  representative,  or  where  he  is  a  minor  or  in- 
competent, to  his  guardian,  (j)  "Dependents"  means 
such  members  of  the  workman's  family  as  were  wholly 
or  in  part  dependent  upon  the  workman  at  the  time  of 
the  accident.  And  "members  of  a  family"  for  the  pur- 


§292     WORKMEN'S  COMPENSATION  AND  INSURANCE.     718 

poses  of  this  act  means  only  widow  or  husband,  as  the 
case  may  be,  and  children;  or  if  no  widow,  husband  or 
children,  then  parents  and  grandparents,  or  if  no  par- 
ents or  grandparents,  then  grandchildren;  or  if  no  grand- 
children, then  brothers  and  sisters.  In  the  meaning  of 
this  section  parents  include  step-parents,  children  in- 
clude step-children,  and  grandchildren  include  step- 
grandchildren,  and  brothers  and  sisters  include  step- 
brothers and  step-sisters,  and  children  and  parents  in- 
clude that  relation  by  legal  adoption. 

Sec.  10.  Incompetency  of  workman. — In  case  an 
injured  workman  is  mentally  incompetent  or  a  minor, 
or  where  death  results  from  the  injury,  in  case  any  of 
his  dependents  as  herein  defined  is  mentally  incompetent 
or  a  minor,  at  the  time  when  any  right,  privilege  or 
election  accrues  to  him  under  this  act,  his  guardian  may, 
in  his  behalf,  claim  and  exercise  such  right,  privilege, 
or  election,  and  no  limitation  of  time,  in  this  act  pro- 
vided for,  shall  run,  so  long  as  such  incompetent  or 
minor  has  no  guardian. 

Sec.  11.  Amount  of  compensation. — The  amount  of 
compensation  under  this  act  shall  be,  (a)  Where  death 
results  from  injury:  (1)  If  the  workman  leaves  any  de- 
pendents wholly  dependent  upon  his  earnings,  an 
amount  equal  to  three  times  his  earnings  for  the  pre- 
ceding year  but  not  exceeding  thirty-six  hundred  dol- 
lars and  not  less  than  twelve  hundred  dollars,  provided, 
such  earnings  shall  be  computed  upon  the  basis  of  the 
scale  which  he  received  or  would  have  been  entitled  to 
receive  had  he  been  at  work,  during  the  thirty  days 
next  preceding  the  accident;  and,  if  the  period  of  the 
workmen's  employment  by  the  said  employer  had  been 
less  than  one  year,  then  the  amount  of  his  earnings  dur- 
ing the  said  year  shall  be  deemed  to  be  fifty-two  times 
his  average  weekly  earnings  during  the  period  of  his 
actual  employment  under  said  employer;  provided,  that 
the  amount  of  any  payments  made  under  this  act  and 


7J9  KANSAS  ACT.  §  2Q2 

any  lump  sum  paid  hereunder  for  such  injury  from  which 
death  may  thereafter  result  shall  be  deducted  from  such 
sum ;  and  provided,  however,  that  if  the  workman  does 
not  leave  any  dependents,  citizens  of  and  residing  at  the 
time  of  the  accident  in  the  United  States  or  the  Domin- 
ion of  Canada,  the  amount  of  compensation  shall  not 
exceed  in  any  case  seven  hundred  and  fifty  dollars.  (2) 
If  the  workman  does  not  leave  any  such  dependents, 
but  leaves  any  dependents  in  part  dependent  upon  his 
earnings,  such  proportion  of  the  amount  payable  under 
the  foregoing  provisions  of  this  section,  as  may  be 
agreed  upon  or  determined  to  be  proportionate  to  the 
injury  to  the  said  dependents;  and  (3)  if  he  leaves  no 
dependents,  the  reasonable  expense  of  his  medical  at- 
tendance and  burial,  not  exceeding  one  hundred  dollars, 
(b)  Where  total  incapacity  for  work  results  from  injury, 
periodical  payments  during  such  incapacity,  commenc- 
ing at  the  end  of  the  second  week,  equal  to  fifty  per  cent 
of  his  average  weekly  earnings  computed  as  provided 
in  section  12,  but  in  no  case  less  than  six  dollars  per 
week  or  more  than  fifteen  dollars  per  week,  (c)  When 
partial  incapacity  for  work  results  from  injury,  periodical 
payments  during  such  incapacity,  commencing  at  the 
end  of  the  second  week,  shall  not  be  less  than  twenty- 
five  per  cent,  nor  exceed  fifty  per  cent,  based  upon  the 
average  weekly  earnings  computed  as  provided  in  sec- 
tion 12,  but  in  no  case  less  than  three  dollars  per  week 
or  more  than  twelve  dollars  per  week;  provided,  how- 
ever, that  if  the  workman  is  under  twenty-one  years  of 
age  at  the  date  of  the  accident  and  the  average  weekly 
earnings  are  less  than  $10.00  his  compensation  shall  not 
be  less  than  seventy-five  per  cent  of  his  average  earn- 
ings. No  such  payment  for  total  or  partial  disability 
shall  extend  over  a  period  exceeding  ten  years. 

Sec.  12.  Rule  for  compensation. — For  the  purposes 
of  the  provisions  of  this  act  relating  to  "earnings"  and 
"average  earnings"  of  a  workman,  the  following  rules 


§  292     WORKMEN'S  COMPENSATION  AND  INSURANCE.     720 

shall  be  observed:  (a)  "Average  earnings"  shall  be  com- 
puted in  such  manner  as  is  best  calculated  to  give  the 
average  rate  per  week  at  which  the  workman  was  being 
remunerated  for  the  52  weeks  prior  to  the  accident. 
Provided,  that  where  by  reason  of  the  shortness  of  time 
during  which  the  workman  has  been  in  the  employment 
of  his  employer,  or  the  casual  nature  or  the  terms  of  the 
employment,  it  is  impracticable  to  compute  the  rate  of 
remuneration,  regard  shall  be  had  to  the  average  weekly 
amount  which,  during  the  twelve  months  previous  to 
the  accident,  was  being  earned  by  a  person  in  the  same 
grade  employed  at  the  same  work  by  the  same  employer, 
or,  if  there  is  no  person  employed,  by  a  person  in  the 
same  grade  employed  in  the  same  class  of  employment 
and  in  the  same  district,  (b)  Where  the  workman  had 
entered  into  concurrent  contract  of  service  with  two  or 
more  employers  under  which  he  worked  at  one  time  for 
one  such  employer  and  at  another  time  for  another  such 
employer,  his  "earnings"  and  his  "average  earnings" 
shall  be  computed  as  if  his  earnings  under  all  such  con- 
tracts were  earnings  in  the  employment  of  the  employer 
for  whom  he  was  working  at  the  time  of  the  accident, 
(c)  Employment  by  the  same  employer  shall  be  taken 
to  mean  employment  by  the  same  employer  in  the  grade 
in  which  the  workman  was  employed  at  the  time  of  the 
accident,  uninterrupted  by  his  absence  of  work  due  to 
illness  or  any  other  unavoidable  cause,  (d)  Where  the 
employer  has  been  accustomed  to  pay  to  the  workman 
a  sum  to  cover  any  special  expenses  entailed  upon  him 
by  the  nature  of  his  employment,  the  sum  so  paid  shall 
not  be  reckoned  as  part  of  the  earnings,  (e)  In  fixing 
the  amount  of  the  payment,  allowance  shall  be  made  for 
any  payment  or  benefit  which  the  workman  may  receive 
from  the  employer  during  his  period  of  incapacity,  (f) 
In  the  case  of  partial  incapacity  the  payments  shall  be 
computed  to  equal,  as  closely  as  possible,  fifty  per  cent 
of  the  difference  between  the  amount  of  the  "average 


721  KANSAS  ACT.  §  2Q2 

earnings"  of  the  workman  before  the  accident,  to  be 
computed  as  herein  provided,  and  the  average  amount 
which  he  is  most  probably  able  to  earn  in  some  suitable 
employment  or  business  after  the  accident,  subject  how- 
ever, to  the  limitations  hereinbefore  provided. 

Sec.  13.  Payments  to  the  injured  workman. — The 
payments  shall  be  made  at  the  same  time,  place  and  in 
the  same  manner  as  the  wages  of  the  workman  were 
payable  at  the  time  of  the  accident,  but  a  judge  of  any 
district  court  having  jurisdiction  upon  the  application 
of  either  party  may  modify  such  regulation  in  a  particu- 
lar case  as  to  him  may  seem  just. 

Sec.  14.  Compensation  to  dependents,  etc. — Where 
death  results  from  the  injury  and  the  dependents  of  the 
deceased  workman  as  herein  defined,  have  agreed  to  ac- 
cept compensation,  and  the  amount  of  such  compensa- 
tion and  the  apportionment  thereof  between  them  has 
been  agreed  to  or  otherwise  determined,  the  employer 
may  pay  such  compensation  to  them  accordingly  (or  to 
an  administrator  if  one  be  appointed)  and  thereupon  be 
discharged  from  all  further  liability  for  the  injury. 
Where  only  the  apportionment  of  the  agreed  compensa- 
tion between  the  dependents  is  not  agreed  to,  the  em- 
ployer may  pay  the  amount  into  any  district  court  hav- 
ing jurisdiction,  or  to  the  administrator  of  the  deceased 
workman,  with  the  same  effect.  Where  the  compensa- 
tion has  been  so  paid  into  court  or  to  an  administrator, 
the  proper  court,  upon  the  petition  of  such  administra- 
tor or  any  of  such  dependents,  and  upon  such  notice  and 
proof  as  it  may  order  shall  determine  the  distribution 
thereof  among  such  dependents.  Where  there  are  no 
dependents,  medical  and  funeral  expenses  may  be  paid 
and  distributed  in  like  manner. 

Sec.  15.  The  payments  due  under  this  act,  as  well 
as  any  judgment  obtained  thereunder,  shall  not  be  as- 
signable or  subject  to  levy,  execution  or  attachment, 
except  for  medicine,  medical  attention  and  nursing  and 

46— BOYD  W  C 


§  292     WORKMEN'S  COMPENSATION  AND  INSURANCE.     722 

no  claim  of  any  attorney  at  law  for  service  rendered  in 
securing  such  indemnity  or  compensation  or  judgment 
shall  be  an  enforceable  lien  thereon,  unless  the  same  has 
been  approved  in  writing  by  the  judge  of  the  court 
where  said  case  was  tried;  but  if  no  trial  was  had,  then 
by  any  judge  of  the  district  court  of  this  state  to  whom 
such  matter  has  been  regularly  submitted,  on  due  notice 
to  the  party  or  parties  in  interest  of  such  submission. 

Sec.  16.  Reports  as  to  accidents  and  compensation. 
— Employers  affected  by  this  act  shall  report  annually 
to  the  state  commissioner  and  factory  inspector  such 
reasonable  particulars  in  regard  thereto  as  he  may  re- 
quire, including  particulars  as  to  all  releases  of  liability 
under  this  act  and  any  other  law.  The  penalty  for  fail- 
ure to  report  or  for  false  report  shall  invalidate  any  such 
release  of  liability. 

Sec.  17.  Medical  examination. — (a)  After  an  injury 
to  the  employe,  if  so  requested  by  his  employer,  the  em- 
ploye must  submit  himself  for  examination  at  some  rea- 
sonable time  to  a  reputable  physician  selected  by  the 
employer,  and  from  time  to  time  thereafter  during  the 
pendency  of  his  claim  for  compensation,  or  during  the 
receipt  by  him  for  payment,  under  this  act,  but  he  shall 
not  be  required  to  so  submit  himself,  more  than  once  in 
two  weeks  unless  in  accordance  with  such  orders  as  may 
be  made  by  the  proper  court  or  judge  thereof.  Either 
party  may  upon  demand  require  a  report  of  any  exam- 
ination made  by  the  physician  of  the  other  party  upon 
payment  of  a  fee  of  one  dollar  therefor,  (b)  If  the  em- 
ployes request  he  shall  be  entitled  to  have  a  physician 
of  his  own  selection  present  at  the  time  to  participate  in 
such  examinations,  (c)  Unless  there  has  been  a  reason- 
able opportunity  thereafter  for  such  physician  selected 
by  the  employe  to  participate  in  the  examination  in  the 
presence  of  the  physician  selected  by  the  employer,  the 
physician  selected  by  the  employer  shall  not  be  per- 
mitted afterwards  to  give  evidence  of  the  condition  of 


723  KANSAS  ACT.  § 

the  employe  in  a  dispute  as  to  the  injury,  (d)  Except  as 
provided  herein  in  this  act  there  shall  be  no  other  dis- 
qualification or  privilege  preventing  the  testimony  of  a 
physician  who  actually  makes  an  examination. 

Sec.  18.  Medical  examination  by  neutral  physician. 
— In  case  of  a  dispute  as  to  the  injury,  the  committee, 
or  arbitrator  as  hereinafter  provided,  or  the  judge  of  the 
district  court  shall  have  the  power  to  employ  a  neutral 
physician  of  good  standing  and  ability,  whose  duty  it 
shall  be,  at  the  expense  of  the  parties,  to  make  an  exam- 
ination of  the  injured  person,  as  the  court  may  direct, 
on  the  petition  of  either  or  both  the  employer  and  em- 
ploye or  dependents. 

Sec.  19.  Testimony  by  court  physician. — If  the  em- 
ployer or  the  employe  has  a  physician  make  such  an  ex- 
amination and  no  reasonable  opportunity  is  given  to  the 
other  party  to  have  his  physician  make  examination, 
then,  in  case  of  a  dispute  as  to  the  injury,  the  physician 
of  the  party  making  such  examination  shall  not  give  evi- 
dence before  the  court  unless  a  neutral  physician  either 
has  examined  or  then  does  examine  the  injured  em- 
ploye and  give  testimony  regarding  the  injuries. 

Sec.  20.  Refusal  of  medical  examination. — If  the 
employe  shall  refuse  examination  by  physician  selected 
by  the  employer,  with  the  presence  of  a  physician 
of  his  own  selection,  and  shall  refuse  an  examination  by 
the  physician  appointed  by  the  court,  he  shall  have  no 
right  to  compensation  during  the  period  from  refusal 
until  he,  or  someone  in  his  behalf,  notifies  the  employer 
or  the  court  that  he  is  willing  to  have  such  examination. 

Sec.  21.  Certificate  of  physician. — A  physician  mak- 
ing an  examination  shall  give  to  the  employer  and  to  the 
workman  a  certificate  as  to  the  condition  of  the  work- 
man, but  such  certificate  shall  not  be  competent  evi- 
dence of  that  condition  unless  supported  by  his  testi- 
mony if  his  testimony  would  have  been  admissible. 

Sec.   22.     Notice   and   claim. — Proceedings   for  the 


§  292    WORKMEN'S  COMPENSATION  AND  INSURANCE.     724 

recovery  of  compensation  under  this  act  shall  not  be 
maintainable  unless  written  notice  of  the  accident,  stat- 
ing the  time,  place,  and  particulars  thereof,  and  the 
name  and  address  of  the  person  injured,  has  been  given 
within  ten  days  after  the  accident,  and  unless  a  claim 
for  compensation  has  been  made  within  six  months  after 
the  accident,  or  in  case  of  death,  within  six  months  from 
the  date  thereof.  Such  notice  shall  be  delivered  by  reg- 
istered mail,  or  by  delivery  to  the  employer.  The  want 
of,  or  any  defect  in  such  notice,  or  in  its  service,  shall 
not  be  a  bar  unless  the  employer  proves  that  he  has,  in 
fact,  been  thereby  prejudiced,  or  if  such  want  or  defect 
was  occasioned  by  mistake,  physical  or  mental  incapac- 
ity or  other  reasonable  cause,  and  the  failure  to  make  a 
claim  within  the  period  above  specified  shall  not  be  a 
bar,  if  such  failure  was  occasioned  by  a  mistake,  physi- 
cal or  mental  incapacity  or  other  reasonable  cause. 

Sec.  23.  Agreements. — Compensation  due  under 
this  act  may  be  settled  by  agreement.  Every  such  agree- 
ment, other  than  a  release,  shall  be  in  the  form  herein- 
after provided. 

Sec.  24.  Arbitrations. — If  compensation  be  not  so 
settled  by  agreement:  (a)  If  any  committee  representa- 
tive of  the  employer  and  the  workman  exists,  organized 
for  the  purpose  of  settling  disputes  under  this  act,  the 
matter  shall,  unless  either  party  objects  by  notice  in 
writing  delivered  or  sent  by  registered  mail  to  the  other 
party  before  the  committee  meets  to  consider  the  mat- 
ter, be  settled  in  accordance  with  its  rules  by  such  com- 
mittee or  by  an  arbitrator  selected  by  it.  (b)  If  either 
party  so  objects,  or  there  is  no  such  committee,  or  the 
committee  or  the  arbitrator  to  whom  it  refers  the  matter 
fails  to  settle  it  within  sixty  days  from  the  date  of  the 
claim,  the  matter  may  be  settled  by  a  single  arbitrator 
agreed  on  by  the  parties,  or  appointed  by  any  judge  of  a 
court  where  an  action  might  be  maintained.  The  consent 
to  arbitration  shall  be  in  writing  and  signed  by  the 


725  KANSAS  ACT.  §  292 

parties  and  may  limit  the  fees  of  the  arbitrator  and  the 
time  within  which  the  award  must  be  made.  And  unless 
such  consent  and  the  order  of  appointment  expressly  re- 
fers other  questions,  only  the  question  of  the  amount  of 
compensation  shall  be  deemed  to  be  in  issue. 

Sec.  25.  The  duties  of  arbitrator. — The  arbitrator 
shall  not  be  bound  by  technical  rules  of  procedure  or 
evidence,  but  shall  give  the  parties  reasonable  oppor- 
tunity to  be  heard  and  act  reasonably  and  without  par- 
tiality. He  shall  make  and  file  his  award,  with  the  con- 
sent to  arbitration  attached  in  the  office  of  the  clerk  of 
the  proper  district  court  within  the  time  limited  in  the 
consent,  or  if  no  time  limit  is  fixed  therein,  within  sixty 
days  after  his  selection,  and  shall  give  notice  of  such 
filing  to  the  parties  by  mail. 

Sec.  26.  Arbitrator's  fees. — The  arbitrator's  fees 
shall  be  fixed  by  the  consent  to  arbitration  or  be  agreed 
to  by  the  parties  before  the  arbitration,  and  if  not  so 
fixed  or  agreed  to,  they  shall  not  exceed  $10.00  per  day, 
for  not  to  exceed  ten  days,  and  disbursements  for  ex- 
pense. The  arbitrator  shall  tax  or  apportion  the  costs 
of  such  fees  in  his  discretion  and  shall  add  the  amount 
taxed  or  apportioned  against  the  employer  to  the  first 
payment  made  under  the  award,  and  he  shall  note  the 
amount  of  his  fees  on  the  award,  and  shall  have  a  lien 
therefor  on  the  first  payments  due  under  the  award. 

Sec.  27.  Form  of  agreements  and  award. — Every 
agreement  for  compensation  and  every  award  shall  be 
in  writing,  signed  and  acknowledged  by  the  parties  or 
by  the  arbitrator  or  secretary  of  the  committee  herein- 
before referred  to,  and  shall  specify  the  amount  due  and 
unpaid  by  the  employer  to  the  workman  up  to  the  date 
of  the  agreement  or  award,  and  if  any,  the  amount  of 
the  payments  thereafter  to  be  paid  by  the  employer  to 
the  workman  and  the  length  of  time  such  payments 
shall  continue. 

Sec.  28.     Filing  agreements,  awards,  etc. — It  shall 


§  292     WORKMEN'S  COMPENSATION  AND  INSURANCE.     726 

be  the  duty  of  the  employer  to  file  or  cause  to  be  filed 
every  release  of  liability  hereunder,  every  agreement 
for  or  award  of  compensation,  or  modifying  an  agree- 
ment for  or  award  of  compensation,  under  this  act,  if 
not  filed  by  the  committee  or  arbitrator,  to  which  he  is 
a  party,  or  a  sworn  copy  thereof,  in  the  office  of  the  dis- 
trict court  in  the  county  in  which  the  accident  occurred 
within  sixty  days  after  it  is  made,  otherwise  it  shall  be 
void  as  against  the  workman.  The  said  clerk  shall  ac- 
cept, receipt  for,  and  file  any  such  release,  agreement  or 
award,  without  fee,  and  record  and  index  it  in  the  book 
kept  for  that  purpose.  Nothing  herein  shall  be  con- 
strued to  prevent  the  workman  from  filing  such  agree- 
ment or  award. 

Sec.  29.  Agreements  and  awards — When  canceled. 
— At  any  time  within  one  year  after  an  agreement  or 
award  has  been  so  filed,  a  judge  of  a  district  court  hav- 
ing jurisdiction  may,  upon  the  application  of  either 
party,  cancel  such  agreement  or  award,  upon  such  terms 
as  may  be  just,  if  it  be  shown  to  his  satisfaction  that  the 
workman  has  returned  to  work  and  is  earning  approxi- 
mately the  same  or  higher  wages  as  or  than  he  did  be- 
fore the  accident,  or  that  the  agreement  or  award 
has  been  obtained  by  fraud  or  undue  influence, 
or  that  the  committee  or  arbitrator  making  the  award 
acted  without  authority  or  was  guilty  of  serious  mis- 
conduct, or  that  the  award  is  grossly  inadequate  or 
grossly  excessive,  or  if  the  employe  absents  himself  so 
that  a  reasonable  examination  of  his  condition  cannot 
be  made,  or  has  departed  beyond  the  boundaries  of  the 
United  States  or  Canada. 

Sec.  30.  Staying  proceedings  upon  agreement  or 
award. — At  any  time  after  the  filing  of  an  agreement  or 
award  and  before  judgment  has  been  granted  thereon, 
the  employer  may  stay  proceedings  thereon  by  filing  in 
the  office  of  the  clerk  of  the  district  court  wherein  such 
agreements  or  award  is  filed:  (a)  A  proper  certificate 


727  KANSAS  ACT. 

of  a  qualified  insurance  company  that  the  amount  of  the 
compensation  to  the  workman  is  insured  by  it;  (b)  A 
proper  bond  undertaking  to  secure  the  payment  of  the 
compensation.  Such  certificate  or  bond  shall  first  be 
approved  by  a  judge  of  the  said  district  court. 

Sec.  31.  Judgment  upon  agreement  or  award. — At 
any  time  after  an  agreement  or  award  has  been  filed, 
the  workman  may  apply  to  the  said  district  court  for 
judgment  against  the  employer  for  a  lump  sum  equal  to 
eighty  per  cent  of  the  amount  of  payments  due  and  un- 
paid and  prospectively  due  under  the  agreement  or 
award;  and,  unless  the  agreement  or  award  be  stayed, 
modified  or  canceled,  or  the  liability  thereunder  be  re- 
deemed or  otherwise  discharged,  the  court  shall  exam- 
ine the  workman  under  oath,  and  if  satisfied  that  the 
application  is  made  because  of  doubt  as  to  the  security 
of  his  compensation,  shall  compute  the  sum  and  direct 
judgment  accordingly,  as  if  in  an  action;  provided,  that 
if  the  employer  shall  give  a  good  and  sufficient  bond, 
approved  by  the  court,  no  execution  shall  issue  on  such 
judgment  so  long  as  the  employer  continues  to  make 
payments  in  accordance  with  the  original  agreement  or 
award  undiminished  by  the  discount. 

Sec.  32.  Review  or  modification  of  agreement  or 
award. — An  agreement  or  award  may  be  modified  at 
any  time  by  a  subsequent  agreement;  or,  at  any  time 
after  one  year  from  the  date  of  filing;  it  may  be  re- 
viewed, upon  the  application  of  either  party  on  the 
ground  that  the  incapacity  of  the  workman  has  subse- 
quently increased  or  diminished.  Such  application  shall 
be  made  to  the  said  district  court;  and,  unless  the  parties 
consent  to  arbitration,  the  court  may  appoint  a  medical 
practitioner  to  examine  the  workman  and  report  to  it ; 
and  upon  his  report  and  after  hearing  the  evidence  of 
the  parties,  the  court  may  modify  such  agreement  or 
award,  as  may  be  just,  by  ending,  increasing  or  dimin- 


§  292     WORKMEN'S  COMPENSATION  AND  INSURANCE.     728 

ishing  the  compensation,  subject  to  the  limitations  here- 
inbefore provided. 

Sec.  33.  Redemption  of  liability. — Where  any  pay- 
ment has  been  continued  for  not  less  than  six  months 
the  liability  therefor  may  be  redeemed  by  the  employer 
by  the  payment  to  the  workman  of  a  lump  sum  of  an 
amount  equal  to  eighty  per  cent  of  the  payments  which 
may  become  due  according  to  the  award,  such  amount 
to  be  determined  by  agreement,  or,  in  default  thereof, 
upon  application,  to  a  judge  of  a  district  court  having 
jurisdiction.  Upon  paying  such  amount  the  employer 
shall  be  discharged  from  all  further  liability  on  account 
of  the  injury,  and  be  entitled  to  a  duly  executed  release, 
upon  filing  which  or  other  due  proof  of  payment,  the 
liability  upon  any  agreement  or  award  shall  be  dis- 
charged of  record. 

Sec.  34.  Insurance. — Where  the  payment  of  com- 
pensation to  the  workman  is  insured,  by  a  policy  or 
policies,  at  the  expense  of  the  employer,  the  insurer 
shall  be  subrogated  to  the  rights  and  duties  under  this 
act  of  the  employer,  so  far  as  appropriate. 

Sec.  35.  Courts. — All  references  hereinbefore  to  a 
district  court  of  the  state  of  Kansas  having  jurisdiction 
of  a  civil  action  between  the  parties  shall  be  construed 
as  relating  to  the  then  existing  code  of  civil  procedure. 
Such  court  shall  make  all  rules  necessary  and  appro- 
priate to  carry  out  the  provisions  of  this  act. 

Sec.  36.  Actions. — A  workman's  right  to  compen- 
sation under  this  act,  may,  in  default  of  agreement  or 
arbitration,  be  determined  and  enforced  by  action  in 
any  court  of  competent  jurisdiction.  In  every  such  ac- 
tion the  right  to  trial  by  jury  shall  be  deemed  waived 
and  the  case  tried  by  the  court  without  a  jury,  unless 
either  party,  with  his  notice  of  trial,  or  when  the  case  is 
placed  upon  the  calendar — demand  a  jury  trial.  The 
judgment  in  the  action,  if  in  favor  of  the  plaintiff,  shall 
be  for  a  lump  sum  equal  to  the  amount  of  the  payments 


KANSAS  ACT.  §  2Q2 

then  due  and  prospectively  due  under  this  act,  with  inter- 
est on  the  payments  overdue,  or,  in  the  discretion  of  the 
trial  judge,  for  periodical  payments  as  in  an  award. 
Where  death  results  from  injury,  the  action  shall  be 
brought  by  the  dependent  or  dependents  entitled  to  the 
compensation  or  by  the  legal  representative  of  the  de- 
ceased for  the  benefit  of  the  dependents  as  herein  de- 
fined; and  in  such  action  the  judgment  may  provide  for 
the  proportion  of  the  award  to  be  distributed  to  or  be- 
tween the  several  dependents;  otherwise  such  propor- 
tions shall  be  determined  by  the  proper  probate  court. 
An  action  to  set  aside  a  release  or  other  discharge  of  lia- 
bility on  the  ground  of  fraud  or  mental  incompetency 
may  be  joined  with  an  action  for  compensation  under 
this  act.  No  action  or  proceeding  provided  for  in  this  act 
shall  be  brought  or  maintained  outside  of  the  state  of 
Kansas,  and  notice  thereof  may  be  given  by  publication 
against  nonresidents  of  the  state  in  the  manner  now  pro- 
vided by  article  7  of  chapter  95,  General  Statutes  of  Kan- 
sas of  1909  so  far  as  the  same  may  be  applicable,  and  by 
personal  service  of  a  true  copy  of  the  first  publication 
within  twenty-one  days  after  the  date  of  the  said  first 
publication,  unless  excused  by  the  court  upon  proper 
showing  that  such  service  cannot  be  made. 

Sec.  37.  When  the  cause  of  action  accrues. — The 
cause  of  action  shall  be  deemed  in  every  case,  including 
a  case  where  death  results  from  the  injury  to  have  ac- 
crued to  the  injured  workman  at  the  time  of  the  acci- 
dent; and  the  time  limited  in  which  to  commence  an 
action  for  compensation  therefor  shall  run  as  against 
him,  his  legal  representatives  and  dependents  from  that 
date. 

Sec.  38.  Attorney's  liens. — Contingent  fees  of  at- 
torneys for  services  and  proceedings  under  this  act  shall 
in  every  case  be  subject  to  approval  by  the  court. 

Sec.  39.  Certificate  required. — If  the  superinten- 
dent of  insurance  by  and  with  the  advice  and  written 


§  292     WORKMEN'S  COMPENSATION  AND  INSURANCE.     730 

approval  of  the  attorney  general  certifies  that  any 
scheme  of  compensation,  benefit  or  insurance  for  the 
workman  of  an  employer  in  any  employment  to  which 
this  act  applies,  whether  or  not  such  scheme  includes 
other  employers  and  their  workmen,  provides  scales  of 
compensation  not  less  favorable  to  the  workmen  and 
their  dependents  than  the  corresponding  scales  con- 
tained in  this  act,  and  that,  where  the  scheme  provides 
for  contributions  by  the  workman,  the  scheme  confers 
benefits  at  least  equivalent  to  those  contributions,  in 
addition  to  the  benefits  to  which  the  workmen  would 
have  been  entitled  under  this  act  or  their  equivalents, 
the  employer,  may,  while  the  certificate  is  in  force,  con- 
tract with  any  of  his  workmen  that  the  provisions  of  the 
scheme  shall  be  substituted  for  the  provisions  of  this 
act;  and  thereupon  the  employer  shall  be  liable  only  in 
accordance  with  that  scheme ;  but,  save  as  aforesaid, 
this  act  shall  not  apply  notwithstanding  any  contract  to 
the  contrary  made  after  this  act  becomes  a  law. 

Sec.  40.  Condition  to  certificate. — No  ^scheme  shall 
be  so  certified  which  does  not  contain  suitable  provisions 
for  the  equitable  distribution  of  any  moneys  or  securi- 
ties held  for  the  purpose  of  the  scheme,  after  due  provi- 
sion has  been  made  to  discharge  the  liabilities  already  ac- 
crued, if  and  when  such  certificate  is  revoked  or  the 
scheme  otherwise  terminated. 

Sec.  41.  Certificate  to  be  revocable. — If  at  any  time 
the  scheme  no  longer  fulfills  the  requirements  of  this 
article,  or  is  not  fairly  administered,  or  other  valid  and 
substantial  reasons  therefor  exist,  the  superintendent  of 
insurance  by  and  with  the  attorney  general  shall  revoke 
the  certificate  and  the  scheme  shall  thereby  be  termin- 
ated. 

Sec.  42.  Information  to  be  reported. — Where  a 
certified  scheme  is  in  effect  the  employer  shall  answer 
all  such  inquiries  and  furnish  all  such  accounts  in  regard 
thereto  as  may  be  required  by  the  superintendent. 


73  !  KANSAS  ACT.  §  2Q2 

Sec.  43.  The  superintendent  of  insurance  may  make 
all  rules  and  regulations  necessary  to  carry  out  the  pur- 
poses of  the  four  preceding  sections. 

Sec.  44.  All  employers  as  defined  by  this  act  who 
shall  elect  to  come  within  the  provisions  of  this  act  and 
of  all  acts  amendatory  hereof  shall  do  so  by  filing  a  state- 
ment to  such  effect  with  the  secretary  of  state  of  this 
state  at  any  time  after  taking  effect  of  this  act,  which 
election  shall  be  binding  upon  such  employer  for  the 
term  of  one  year  from  the  date  of  the  filing  of  such 
statement,  and  thereafter,  without  further  act  on  his 
part,  for  successive  terms  of  one  year  each,  unless  such 
employer  shall,  at  least  sixty  days  prior  to  the  expira- 
tion of  such  first  or  of  any  succeeding  year,  file  in  the 
office  of  the  secretary  of  state  a  notice  in  writing  to 
the  effect  that  he  withdraws  his  election  to  be  subject 
to  the  provisions  of  this  act.  Notice  of  such  election  or 
withdrawal  shall  be  forthwith  posted  by  such  employer 
in  conspicuous  places  in  and  about  his  place  of  business. 

Sec.  45.  Every  employe  entitled  to  come  within  the 
provisions  of  this  act,  shall  be  presumed  to  have  done 
so  unless  he  serve  written  notice,  before  injury,  upon  his 
employer  that  he  elects  not  to  accept  thereunder  and 
thereafter  any  such  employe  desiring  to  change  his  elec- 
tion shall  only  do  so  by  serving  written  notice  thereof 
upon  his  employer.  Any  contract  wherein  an  employer 
requires  of  an  employe  as  a  condition  of  employment 
that  he  shall  elect  not  to  come  within  the  provisions  of 
this  act  shall  be  void. 

Sec.  46.  In  any  action  to  recover  damages  for  a 
personal  injury  sustained  within  this  state  by  an  em- 
ploye (entitled  to  come  within  the  provisions  of  this  act) 
while  engaged  in  the  line  of  his  duty  as  such  or  for  death 
resulting  from  personal  injury  so  sustained,  in  which 
recovery  is  sought  upon  the  ground  of  want  of  due 
care  of  the  employer  or  of  any  officer,  agent  or  servant 
of  the  employer,  where  such  employer  is  within  the  pro- 


§  292     WORKMEN'S  COMPENSATION  AND  INSURANCE.     732 

visions  hereof,  it  shall  not  be  a  defense  to  any  employer 
(as  herein  in  this  act  defined)  who  shall  not  have  elect- 
ed, as  hereinbefore  provided,  to  come  within  the  provis- 
ions of  this  act:  (a)  That  the  employe  either  expressly 
or  impliedly  assumed  the  risk  of  the  hazard  complained 
of;  (b)  that  the  injury  or  death  was  caused  in  whole  or 
in  part  by  the  want  of  due  care  of  a  fellow  servant;  (c) 
that  such  employe  was  guilty  of  contributory  negligence 
but  such  contributory  negligence  of  said  employe  shall 
be  considered  by  the  jury  in  assessing  the  amount  of 
recovery. 

Sec.  47.  In  an  action  to  recover  damages  for  a  per- 
sonal injury  sustained  within  this  state  by  an  employe 
(entitled  to  come  within  the  provisions  of  this  act) 
while  engaged  in  the  line  of  his  duty  as  such  or  for 
death  resulting  from  personal  injury  so  sustained  in 
which  recovery  is  sought  upon  the  ground  of  want  of 
due  care  of  the  employer  or  of  any  officer,  agent  or 
servant  of  the  employer,  and  where  such  employer  has 
elected  to  come  and  is  within  the  provisions  of  this  act 
as  hereinbefore  provided,  it  shall  be  a  defense  for  such 
employer  in  all  cases  where  said  employe  has  elected 
not  to  come  within  the  provisions  of  this  act:  (a)  That 
the  employe  either  expressly  or  impliedly  assumed  the 
risk  of  the  hazard  complained  of;  (b)  that  the  injury 
or  death  was  caused  in  whole  or  in  part  by  the  want  of 
due  care  of  a  fellow  servant;  (c)  that  said  employe  was 
guilty  of  contributory  negligence;  provided,  however, 
that  none  of  these  defenses  shall  be  available  where  the 
injury  was  caused  by  the  willful  or  gross  negligence  of 
such  employer,  or  of  any  managing  officer,  or  managing 
agent  of  said  employer,  or  where  under  the  law  existing 
at  the  time  of  the  death  or  injury  such  defenses  are  not 
available. 

Sec.  48.  Nothing  in  this  act  shall  be  construed  to 
amend  or  repeal  section  6999  of  the  General  Statutes  of 
Kansas  of  1909,  or  House  bill  No.  240  of  the  Session  of 


733  KANSAS  ACT.  §  2Q2 

1911,  the  same  being  "An  act  relating  to  the  liability 
of  common  carriers  by  railroads  to  their  employes  in 
certain  cases,  and  repealing  all  acts  and  parts  of  acts  so 
far  as  the  same  are  in  conflict  herewith." 

§293.    Formal    procedure    under    the    act. — The 

Kansas  Workmen's  Compensation  Act  is  administered 
by  the  Bureau  of  Labor  and  Factory  Inspection,  whose 
offices  are  located  in  the  Capitol  Building  at  Topeka. 
The  only  printed  matter  used  by  this  bureau  in  connec- 
tion with  the  administration  of  this  law  at  the  time  this 
is  written  is  "a  blank  form  for  use  of  employers  in  filing 
notice  of  election  to  be  governed  by  this  law."  This 
form  is  set  out  in  the  following  section : 

§  294. — Form  of  election  of  employer  to  come  with- 
in the  provisions  of  the  act. 

State  of  Kansas,  1 
County,  J  ss: 

To  the  Secretary  of  State: 

You   are  hereby   notified   that hereby   elects   to 

come  under  the  provisions  of  Chapter  218,  Session  Laws  of  1911, 
being  an  act  entitled  "An  Act  to  Provide  Compensation  for  Work- 
men Injured  in  Certain  Hazardous  Industries";  that  said 

is  an  employer  of  labor,  and  is  engaged  in  the  business  of 

in  the   State  of  Kansas. 


Before  me,  the  undersigned,  a  notary  public  in  and  for  the 

county  of comes 

who  is  personally  known  to  me  to  be  the  same  person  who  exe- 
cuted the  foregoing  instrument  of  writing,  and  such  person  duly 
acknowledged  the  same  to  be  his  voluntary  act  and  deed,  and  that 
he  has  full  authority  and  power  to  sign  said  instrument  in  writing 
and  to  execute  the  same  for  the  purposes  in  said  writing  therein 
set  out. 

Witness  my  hand  and  notarial  seal,  this 

day  of 19 


Notary    Public. 
My   commission    expires 19 


CHAPTER  XVII. 

THE  NEW  HAMPSHIRE  WORKMEN'S  COMPENSATION  ACT. 

Sec.  Sec. 

295.  The    nature    and   scope    of     299.  Form  of  declaration  of  em- 

the  act.  ployer.     (a) 

296.  Text  of  the  New  Hampshire      300.  Form   of    report   of   indus- 

compensation  act.  trial  accident  to  bureau  of 

297.  Administration  of  the  New  labor,     (b) 

Hampshire  workmen's     301.  Form   of   supplemental   re- 
compensation  act.  port  of  industrial  accident 

298.  Formal   procedure — List  of  to  bureau  of  labor,     (c) 

forms. 

§295.  The  nature  and  scope  of  act. — The  New 
Hampshire  Act  applies  to  five  extra  hazardous  employ- 
ments and  is  optional  in  form.  The  employer  in  these 
employments  is  denied  the  defenses  of  fellow  servant 
and  assumption  of  risk  but  not  that  of  contributory  neg- 
ligence. The  employe  is  denied  relief  where  his  injury 
is  caused  in  full  or  in  part  by  intoxication,  violation  of 
law  or  serious  or  wilful  misconduct.  The  injuries  cov- 
ered by  the  act  are  those  which  incapacitate  the  em- 
ploye for  more  than  two  weeks.  The  employe  loses  all 
right  to  the  benefits  of  the  act  by  commencing  suit  for 
his  injuries  after  acceptance  of  its  provisions.  The  pro- 
visions of  Sec.  2,  the  liability  section  of  the  act,  shall 
not  apply  to  any  employer  who  shall  have  filed  with 
the  Commissioner  of  Labor  his  declaration  in  writing 
that  he  accepts  the  succeeding  sections,  viz.  3  to  13  in- 
clusive, and  shall  have  satisfied  the  Commissioner  of 
his  financial  ability  to  comply  or  has  filed  his  bond  in 
such  form  and  amount  as  the  Commissioner  may  pre- 
scribe. Any  person  aggrieved  by  any  decision  of  the 
commission  respecting  the  filing  of  declaration  or  bonds 
or  matters  connected  therewith  by  the  employer  may  ap- 

735 


§  296     WORKMEN'S  COMPENSATION  AND  INSURANCE.     736 

ply  by  petition  to  any  justice  of  the  superior  court  for  a 
review  of  such  decision.  The  justice's  decision  thereon  is 
final.  The  compensation  provided  by  the  act  may  be 
determined  by  agreement,  or  by  an  action  at  equity  in 
any  court  having  jurisdiction  of  an  action  for  recovery 
of  damages  for  negligence.  In  death  cases  the  court  may 
apportion  to  each  dependent  his  share  of  the  judgment, 
and  in  the  absence  of  such  determination  any  person 
interested  in  the  judgment  may  bring  proceedings  in  a 
probate  court  of  proper  jurisdiction  and  have  the  ap- 
portionment made. 

§  296.  Text  of  the  New  Hampshire  compensation 
act. — The  act  became  operative  January  1,  1912.  It 
provides : 

Section  1.  This  act  shall  apply  only  to  workmen 
engaged  in  manual  or  mechanical  labor  in  the  employ- 
ments described  in  this  section,  which,  from  the  nature, 
conditions  or  means  of  prosecution  of  such  work,  are 
dangerous  to  the  life  and  limb  of  workmen  engaged 
therein,  because  in  them  the  risks  of  employment  and 
the  danger  of  injury  caused  by  fellow  servants  are  great 
and  difficult  to  avoid,  (a)  The  operation  on  steam  or 
electric  railroads  of  locomotives,  engines,  trains  or  cars, 
or  the  construction,  alteration,  maintenance  or  repair  of 
steam  railroad  tracks  or  road  beds  over  which  such  loco- 
motives, engines,  trains  or  cars  are  or  are  to  be  oper- 
ated, (b)  Work  in  any  shop,  mill,  factory  or  other 
place  on,  in  connection  with  or  in  proximity  to  any 
hoisting  apparatus,  or  any  machinery  propelled  or  oper- 
ated by  steam  or  other  mechanical  power  in  which  shop, 
mill,  factory  or  other  place  five  or  more  persons  are 
engaged  in  manual  or  mechanical  labor,  (c)  The  con- 
struction, operation,  alteration  or  repair  of  wires  or 
lines  of  wires,  cables,  switch-boards  or  apparatus, 
charged  with  electric  currents,  (d)  All  work  necessitat- 
ing dangerous  proximity  to  gunpowder,  blasting  pow- 


737  NEW  HAMPSHIRE  ACT.  §  296 

der,  dynamite  or  any  other  explosives,  where  the  same 
are  used  as  instrumentalities  of  the  industry,  or  to  any 
steam  boiler  owned  or  operated  by  the  employer,  pro- 
vided injury  is  occasioned  by  the  explosion  of  any  such 
boiler  or  explosive,  (e)  Work  in  or  about  any  quarry, 
mine  or  foundry.  As  to  each  of  said  employments  it  is 
deemed  necessary  to  establish  a  new  system  of  compen- 
sation for  accidents  to  workmen. 

Sec.  2.  If,  in  the  course  of  any  of  the  employments 
above  described,  personal  injury  by  accident  arising  out 
of  and  in  the  course  of  the  employment  is  caused  to  any 
workman  employed  therein,  in  whole  or  in  part,  by  fail- 
ure of  the  employer  to  comply  with  any  statute,  or  with 
any  order  made  under  authority  of  law,  or  by  the  negli- 
gence of  the  employer  or  any  of  his  or  its  officers,  agents 
or  employes,  or  by  reason  of  any  defect  or  insufficiency 
due  to  his,  its  or  their  negligence  in  the  condition  of  his 
or  its  plant,  ways,  works,  machinery,  cars,  engines, 
equipment,  or  appliances,  then  such  employer  shall  be 
liable  to  such  workmen  for  all  damages  occasioned  to 
him,  or,  in  case  of  his  death,  to  his  personal  representa- 
tives for  all  damages  now  recoverable  under  the  provi- 
sions of  chapter  191  of  the  Public  Statutes.  The  work- 
man shall  not  be  held  to  have  assumed  the  risk  of  any 
injury  due  to  any  cause  specified  in  this  section;  but 
there  shall  be  no  liability  under  this  section  for  any 
injury  to  which  it  shall  be  made  to  appear  by  a  prepond- 
erance of  evidence  that  the  negligence  of  the  plaintiff 
contributed.  The  damages  provided  for  by  this  section 
shall  be  recovered  in  an  action  on  the  case  for  negli- 
gence. 

Sec.  3.  The  provisions  of  section  2  of  this  act  shall 
not  apply  to  any  employer  who  shall  have  filed  with  the 
commissioner  of  labor  his  declaration  in  writing  that  he 
accepts  the  provisions  of  this  act  as  contained  in  the 
succeeding  sections,  and  shall  have  satisfied  the  commis- 
sioner of  labor  of  his  financial  ability  to  comply  with  its 

47— BOYD  W  0 


§  296     WORKMEN'S  COMPENSATION  AND  INSURANCE.     738 

provisions,  or  shall  have  filed  with  the  commissioner  of 
labor  a  bond,  in  such  form  and  amount  as  the  commis- 
sioner may  prescribe,  conditioned  on  the  discharge  by 
such  employer  of  all  liability  incurred  under  this  act. 
Such  bond  shall  be  enforced  by  the  commissioner  of 
labor  for  the  benefit  of  all  persons  to  whom  such  em- 
ployer may  become  liable  under  this  act  in  the  same 
manner  as  probate  bonds  are  enforced.  The  commis- 
sioner may,  from  time  to  time,  order  the  filing  of  new 
bonds,  when  in  his  judgment  such  bonds  are  necessary; 
and  after  thirty  days  from  the  communication  of  such 
order  to  any  employer,  such  employer  shall  be  subject 
to  the  provisions  of  section  2  of  this  act  until  such  order 
has  been  complied  with.  The  employer  may  at  any 
time  revoke  his  acceptance  of  the  provisions  of  the  suc- 
ceeding sections  of  this  act  by  filing  with  the  commis- 
sioner of  labor  a  declaration  to  that  effect,  and  by  post- 
ing copies  of  such  declaration  in  conspicuous  places 
about  the  place  where  his  workmen  are  employed.  Any 
person  aggrieved  by  any  decision  of  the  commissioner 
under  this  section  may  apply  by  petition  to  any  justice 
of  the  superior  court  for  a  review  of  such  decision  and 
said  justice  on  notice  and  hearing  shall  make  such  order 
affirming,  reversing  or  modifying  such  decision  as  jus- 
tice may  require;  and  such  order  shall  be  final.  Such 
employer  shall  be  liable  to  all  workmen  engaged  in  any 
of  the  employments  specified  in  section  1,  for  any  injury 
arising  out  of  and  in  the  course  of  their  employment,  in 
the  manner  provided  in  the  following  sections  of  this 
act.  Provided,  that  the  employer  shall  not  be  liable  in 
respect  of  any  injury  which  does  not  disable  the  work- 
man for  a  period  of  at  least  two  weeks  from  earning 
full  wages  at  the  work  at  which  he  was  employed,  and, 
provided,  that  the  employer  shall  not  be  liable  in  respect 
of  any  injury  to  the  workman  which  is  caused  in  whole 
or  in  part  by  the  intoxication,  violation  of  law,  or  serious 
or  wilful  misconduct  of  the  workman.  Provided,  fur- 


739  NEW  HAMPSHIRE  ACT.  §  296 

ther,  that  the  employer  shall  at  the  election  of  the  work- 
man, or  his  personal  representative,  be  liable  under  the 
provisions  of  section  2  of  this  act  for  all  injury  caused  in 
whole  or  in  part  by  wilful  failure  of  the  employer  to 
comply  with  any  statute,  or  with  any  order  made  under 
authority  of  law. 

Sec.  4.  The  right  of  action  for  damages  caused  by 
any  such  injury,  at  common  law,  or  under  any  statute 
in  force  on  January  one,  nineteen  hundred  and  eleven, 
shall  not  be  affected  by  this  act,  but  in  case  the  injured 
workman,  or  in  event  of  his  death  his  executoror  admin- 
istrator, shall  avail  himself  of  this  act,  either  by  accept- 
ing any  compensation  hereunder,  by  giving  the  notice 
hereinafter  prescribed,  or  by  beginning  proceedings 
therefor  in  any  manner  on  account  of  any  such  injury, 
he  shall  be  barred  from  recovery  in  every  action  at 
common  law  or  under  any  other  statute  on  account  of 
the  same  injury.  In  case  after  such  injury  the  work- 
man, or  in  the  event  of  his  death  his  executor  or  admin- 
istrator, shall  commence  any  action  at  common  law  or 
under  any  statute  other  than  this  act  against  the  em- 
ployer therefor,  he  shall  be  barred  from  all  benefit  of 
this  act  in  regard  thereto. 

Sec.  5.  No  proceedings  for  compensation  under 
this  act  shall  be  maintained  unless  notice  of  the  accident 
as  hereinafter  provided  has  been  given  to  the  employer 
as  soon  as  practicable  after  the  happening  thereof  and 
before  the  workman  has  voluntarily  left  the  employ- 
ment in  which  he  was  injured  and  during  such  disability, 
and  unless  claim  for  compensation  has  been  made 
within  six  months  from  the  occurrence  of  the  accident, 
or  in  case  of  the  death  of  the  workman,  or  in  the  event 
of  his  physical  or  mental  incapacity,  within  six  months 
after  such  death  or  the  removal  of  such  physical  or 
mental  incapacity,  or  in  the  event  that  weekly  payments 
have  been  made  under  this  article,  within  six  months 
after  such  payments  have  ceased,  but  no  want  or  defect 


§  296     WORKMEN'S  COMPENSATION  AND  INSURANCE.     740 

or  inaccuracy  of  a  notice  shall  be  a  bar  to  the  main- 
tenance of  proceedings  unless  the  employer  proves  that 
he  is  prejudiced  by  such  want,  defect  or  inaccuracy. 
Notice  of  the  accident  shall  apprise  the  employer  of  the 
claim  for  compensation  under  this  article,  and  shall 
state  the  name  and  address  of  the  workman  injured, 
and  the  date  and  place  of  the  accident.  The  notice  may 
be  served  personally  or  by  sending  it  by  mail  in  a  regis- 
tered letter  addressed  to  the  employer  at  his  last  known 
residence  or  place  of  business. 

Sec.  6.  (1)  The  amount  of  compensation  shall  be, 
in  case  death  results  from  injury:  (a)  If  the  workman 
leaves  any  widow,  children  or  parents,  resident  of  this 
state,  at  the  time  of  his  death,  then  wholly  dependent 
on  his  earnings,  a  sum  to  compensate  them  for  loss, 
equal  to  one  hundred  and  fifty  times  the  average  weekly 
earnings  of  such  workman  when  at  work  on  full  time 
during  the  preceding  year  during  which  he  shall  have 
been  in  the  employ  of  the  same  employer,  or  if  he  shall 
have  been  in  the  employment  of  the  same  employer  for 
less  than  a  year  then  one  hundred  and  fifty  times  his 
average  weekly  earnings  on  full  time  for  such  less 
period.  But  in  no  event  shall  such  sum  exceed  three 
thousand  dollars.  Any  weekly  payments  made  under 
this  act  shall  be  deducted  from  the  sum  so  fixed,  (b)  If 
such  widow,  children  or  parents  at  the  time  of  his  death 
are  in  part  only  dependent  upon  his  earnings,  such  pro- 
portion of  the  benefits  provided  for  those  wholly  de- 
pendent as  the  amount  of  the  wage  contributed  by  the 
deceased  to  such  partial  dependents  at  the  time  of  in- 
jury bore  to  the  total  wage  of  the  deceased,  (c)  If  he 
leaves  no  such  dependents,  the  reasonable  expenses  of 
his  medical  attendance  and  burial,  not  exceeding  one 
hundred  dollars.  Whatever  sum  may  be  determined  to 
be  payable  under  this  act  in  case  of  death  of  the  injured 
workman  shall  be  paid  to  his  legal  representative  for 
the  benefit  of  such  dependents,  or  if  he  leaves  no  such 


741  NEW  HAMPSHIRE  ACT.  §  296 

dependents,  for  the  benefit  of  the  persons  to  whom  the 
expenses  of  medical  attendance  and  burial  are  due. 

(2)  Where  total  or  partial  incapacity  for  work  at 
any  gainful  employment  results  to  the  workman  from 
the  injury,  a  weekly  payment  commencing  at  the  end  of 
the  second  week  after  the  injury  and  continuing  during 
such  incapacity,  subject  as  herein  provided,  not  exceed- 
ing fifty  per  centum  of  his  average  weekly  earnings 
when  at  work  on  full  time  during  the  preceding  year 
during  which  he  shall  have  been  in  the  employment  of 
the  same  employer,  or  if  he  shall  have  been  in  the  em- 
ployment of  the  same  employer  for  less  than  a  year, 
then  a  weekly  payment  of  not  exceeding  one-half  the 
average  weekly  earnings  on  full  time  for  such  less 
period.  In  fixing  the  amount  of  the  weekly  payment, 
regard  shall  be  had  to  the  difference  between  the 
amount  of  the  average  earnings  of  the  workman  before 
the  accident  and  the  average  amount  he  is  able  to  earn 
thereafter  as  wages  in  the  same  employment  or  other- 
wise. In  fixing  the  amount  of  the  weekly  payment, 
regard  shall  be  had  to  any  payment,  allowance  or  bene- 
fit which  the  workman  may  have  received  from  the 
employer  during  the  period  of  his  incapacity,  and  in  the 
case  of  partial  incapacity  the  weekly  payment  shall  in 
no  case  exceed  the  difference  between  the  amount  of  the 
average  weekly  earnings  of  the  workman  before  the 
accident  and  the  average  weekly  amount  which  he  is 
earning  or  is  able  to  earn  in  the  same  employment  or 
otherwise  after  the  accident,  but  shall  amount  to  one- 
half  of  such  difference.  In  no  event  shall  any  compen- 
sation paid  under  this  act  exceed  the.  damage  suffered, 
nor  shall  any  weekly  payment  payable  under  this  act  in 
any  event  exceed  ten  dollars  a  week  or  extend  over  more 
than  three  hundred  weeks  from  the  date  of  the  accident. 
Such  payment  shall  continue  for  such  period  of  three 
hundred  weeks  provided  total  or  partial  disability  con- 
tinue during  such  period.  No  such  payment  shall  be 


§  296     WORKMEN'S  COMPENSATION  AND  INSURANCE.     742 

due  or  payable  for  any  time  prior  to  the  giving  of  the 
notice  required  by  section  5  of  this  act. 

Sec.  7.  Any  workman  entitled  to  receive  weekly 
payments  under  this  act  is  required,  if  requested  by  the 
employer,  to  submit  himself  for  examination  by  a  duly 
qualified  medical  practitioner  or  surgeon  provided  and 
paid  for  by  the  employer,  at  a  time  and  place  reasonably 
convenient  for  the  workman,  within  two  weeks  after 
the  injury,  and  thereafter  at  intervals  not  oftener  than 
once  in  a  week.  If  the  workman  refuses  to  submit  to  such 
examination,  or  obstructs  the  same,  his  right  to  weekly 
payments  shall  be  suspended  until  such  examination 
has  taken  place,  and  no  compensation  shall  be  payable 
during  or  for  account  of  such  period. 

Sec.  8.  In  case  an  injured  workman  shall  be  men- 
tally incompetent  at  the  time  when  any  right  or  privi- 
lege accrues  to  him  under  this  act,  the  guardian  of  the 
incompetent  appointed  pursuant  to  law  may,  on  behalf 
of  such  incompetent,  claim  and  exercise  any  such  right 
or  privilege  with  the  same  force  and  effect  as  if  the 
workman  himself  had  been  competent  and  had  claimed 
or  exercised  any  such  right  or  privilege,  and  no  limita- 
tion of  time  in  this  act  provided  for  shall  run  so  long  as 
said  incompetent  workman  has  no  guardian. 

Sec.  9.  Any  question  as  to  compensation  which 
may  arise  under  this  act  shall  be  determined  by  agree- 
ment or  by  an  action  at  equity,  as  hereinafter  provided. 
In  case  the  employer  fail  to  make  compensation  as  here- 
in provided,  the  injured  workman,  or  his  guardian,  if 
such  be  appointed,  or  his  executor  or  administrator, 
may  then  bring  an  action  to  recover  compensation  un- 
der this  act  in  any  court  having  jurisdiction  of  an  action 
for  recovery  of  damages  for  negligence  for  the  same  in- 
jury between  the  same  parties.  Such  action  shall  be  by 
petition  in  equity,  which  may  be  made  returnable  at  the 
appropriate  term  of  the  superior  court  or  may  be  filed 
in  the  office  of  the  clerk  of  the  superior  court  and  pre- 


743  NEW  HAMPSHIRE  ACT.  §  296 

sented  in  term  time  or  vacation  to  any  justice  of  said 
court,  who  on  reasonable  notice  shall  hear  the  parties 
and  render  judgment  thereon.     The  judgment  in  such 
action  if  in  favor  of  the  plaintiff  shall  be  for  a  lump  sum 
equal  to  the  amount  of  payments  then  due  and  prospec- 
tively  due  under  this  act.    In  such  action  by  an  executor 
or  administrator  the  judgment  may  provide  the  pro- 
portions of  the  award  or  the  costs  to  be  distributed  to  or 
between   the   several  dependents.     If  such  determina- 
tion is  not  made  it  shall  be  determined  by  the  probate 
court  in  which  such  executor  or  administrator  is  ap- 
pointed, in  accordance  with  this  act,  on  petition  of  any 
party  interested,  on  such  notice  as  such  court  may  di- 
rect.   Any  employer  who  has  declared  his  intention  to 
act  under  the  compensation  features  of  this  act  shall  also 
have  the  right  to  apply  by  similar  proceedings  to  the 
superior  court  or  to  any  justice  thereof  for  a  determin- 
ation of  the  amount  of  the  weekly  payments  to  be  paid 
the  injured  workman,  or  of  a  lump  sum  to  be  paid  the 
injured  workman  in  lieu  of  such  weekly  payments ;  and 
either  such  employer  or  workman  may  apply  to  said 
superior  court  or  to  any  justice  thereof  in  similar  pn> 
ceeding  for  the   determination  of  any  other  question 
that  may  arise  under  the  compensation  feature  of  this 
act;    and  said  court  or  justice,  after  reasonable  notice 
and  hearing,  may  make  such  order  as  to  the  matter  in 
dispute  and  taxable  costs  as  justice  may  require. 

Sec.  10.  Any  person  entitled  to  weekly  payments 
under  this  act  against  any  employer  shall  have  the  same 
preferential  claim  therefor  against  the  assets  of  the  em- 
ployer as  is  allowed  by  law  for  a  claim  by  such  person 
against  such  employer  for  unpaid  wages  or  personal 
services.  Weekly  payments  due  under  this  act  shall  not 
be  assignable  or  subject  to  levy,  execution,  attachment 
or  satisfaction  of  debts.  Any  right  to  receive  compen- 
sation under  this  act  shall  be  extinguished  by  the  death 
of  the  person  entitled  thereto. 

Sec.  11.     No  daim  of  any  attornev~at-law  for  any 


§  297     WORKMEN'S  COMPENSATION  AND  INSURANCE.     744 

contingent  interest  in  any  recovery  under  this  act  for 
services  in  securing  such  recovery  or  for  disbursements 
shall  be  an  enforceable  lien  on  such  recovery,  unless  the 
account  of  the  same  be  approved  in  writing  by  a  justice 
of  the  superior  court,  or,  in  case  the  same  be  tried  in  any 
court,  by  the  justice  presiding  at  such  trial. 

Sec.  12.  Every  employer  subject  to  the  provisions 
of  this  act,  shall  from  time  to  time  make  to  the  commis- 
sioner of  labor  such  returns  as  to  its  operation  as  said 
commissioner  may  require  upon  blanks  to  be  furnished 
by  said  commissioner.  Any  employer  failing  to  make 
such  returns  when  required  by  said  commissioner  shall, 
until  such  returns  are  made,  be  subject  to  the  provisions 
of  section  2  of  this  act. 

§  297.  Administration  of  the  New  Hampshire  work- 
men's compensation  act. — The  New  Hampshire  com- 
pensation act  does  not  provide  for  a  board  charged  with 
duties  of  administration.  In  this  respect  it  is  similar  to 
the  New  Jersey  act  and  is  presumed  to  work  automati- 
cally. The  act,  however,  provides  that  the  commission- 
er of  labor  shall  prescribe  certain  forms  of  declaration 
and  reports  of  industrial  accidents  to  be  filled  out  by 
employers  covered  by  the  act  and  filed  with  the  bureau 
of  labor. 

§  298.  Formal  procedure — List  of  forms. — The  com- 
missioner of  labor  of  New  Hampshire,  pursuant  to  the 
provisions  of  the  act,  has  prescribed  three  forms  which 
are  required  to  be  used  by  employers  covered  by  the 
act.  They  are  designated  as  follows:  (a)  Declaration 
of  employer  that  he  accepts  the  provision  of  the  act; 
(b)  Report  of  industrial  accident — Part  I;  (c)  Supple- 
mental report  of  industrial  accident — Part  II. 

§  299.     Form  of  declaration  of  employer,  (a) 
To  the  Commissioner  of  Labor  of  the  State  of  New  Hampshire. 

Concord,  N.  H.: 

The    undersigned in    accordance 

with  Section  3  of  Chapter  163  of  the  Laws  of  New  Hampshire  of 


745  NEW  HAMPSHIRE  ACT.  §  299 

1911,  hereby  declares  that  it  accepts  the  provisions  of  the  said 
Chapter  163,  Laws  of  1911,  relating  to  compensation  payable  to 
injured  workmen  in  its  employ,  and  attaches  hereto  a  copy  of  its 

last  financial  statement  for  the  period  ending as 

evidence  of  its  ability  to  comply  with  the  provisions  of  the  said 

act. 

(SEAL) 

ATTEST:  BY 

STATE    OF    1 

COUNTY    OF JSS" 

On  this day  of in  the  year before  me  personally 

came to   me   known,    who   being   by    me 

duly  sworn,  did  depose  and  say  that  he  resides  in ; 

that  he  is  the of 

the  corporation  described  in  and  which  executed  the  foregoing  instru- 
ment; that  he  knows  the  seal  of  said  corporation;  that  the  seal 
affixed  to  said  instrument  is  such  corporate  seal;  that  it  was  so 
affixed  by  order  of  the  Board  of  Directors  of  said  corporation, 
and  that  he  signed  his  name  thereto  by  like  order. 

( SEAL)  

Notary  Public. 

§  300.    Form  of  report  of  industrial  accident  to  bu- 
reau of  labor,  (b)1 

Part  I. 

Employer,  place  and  time. 

No Employer's  name Office   address:    Street 

and  No City  or  town State Nature 

of  business Location  of  plant  or  place  of  work  where 

accident  occurred,  if  not  at  office  address . 

The  injured  person — 

Name Address Age Nativity 

What  language  spoken  and  understood? Parent  or  guard- 
ian, if  minor State  whether  manual  or  mechanical  labor, 

and  employment  as  specified  in  a,  b,  c,  d,  e,  of  section  1,  chapter  163, 
Laws  of  19111  a Length  of  experience  (here  and  else- 
where) in  this  employment Regular  occupation,  or  not 

Piece  or  time  worker Wages,  or  average  earnings  per  day 

Working  days  per  week 

The  injury — 

Date  an  exact  hour  of  accident Date  notice  was  received 

by  employer State  fully  nature  and  extent  of  injury , 

Employment  or  department  in  which  accident  occurred 

Machine  or  appliance  causing  Accident — 
Name  of  machine,  tool,  device  or  other  appliance Did  the 


Immediate  report. 
«  See  ante,  §  296. 


§  301     WORKMEN'S  COMPENSATION  AND  INSURANCE.     746 

employe  thoroughly  understand  the  machine,  tool  or  device  and  was 
he  properly  Instructed  regarding  its  operation;  cleaning  when  not 

in   operation;   how  to   shut  off  power  quickly 

What    safeguards? Was   machine,    or   part   of   machine, 

or  appliance  on  which  accident  occurred  defective? 

Had  management  been  notified  of  defect? 

Medical  Attendance — 

Attending    physician,    or    hospital    where    sent 

Name Address  

§  301.     Form  of  supplemental  report  of  industrial 
accident  to  bureau  of  labor,  (c)2 

Part  II. 

Name  of  employer Name  of  injured  person 

Extent  of  Disability — 
Did  injury  result  in  death? If  not,  has  it  caused — 

a.  Permanent  total  disability  (meaning  inability  to  do  any  work)? 

If  so,  state  nature  of  permanent  injury  or  condition 

causing  such  disability 

b.  Permanent  partial  disability  (meaning  ability  to  do  some  work 

but  not  of  same  kind  or  amount  as  before  accident)  ? 

If  so,  state  nature  of  permanent  injury  or  condition  causing  such 

disability On  what  date  was  work  resumed? 

Present  wages,  or  average  earnings,  per  day  at  such  work 

c.  Temporary  disability    (meaning  that  injured   person  has  been 
able  to  resume  same  kind  and  amount  of  work  as  before  acci- 
dent)?  If  so,  for  how  many  working  days  did  such 

disability  last? 

d.  Disability,  the  extent  of  which  is  not  known  two  weeks  after 

first    report? If    so,    state    estimated    period    of    disa- 

ability  

(In  this  case  the  employer  is  expected  to  keep  a  record  from 
which  report  of  ultimate  extent  of  disability  can  be  furnished  when 
requested.) 

Dependents — 
In  case  injury  caused  death  or  permanent  total  disability  as  shown 

above,  give  name,  address,  age  and  relationship  of  each  person 

dependent  on  injured  person's  earnings: 

Name Address Age 

Relationship Date Report  made  out  by 

Whose  position   with 

(Name  of  employer.) 

Is  

(Owner,  superintendent  or  who.) 


2  Report  on  disability.     Part  II,  to  be  sent  in  at  the  end  of  two 
weeks. 


CHAPTER  XVIII. 


THE  MASSACHUSETTS  WORKMEN'S  COMPENSATION  ACT. 


Sec.  Sec. 

302.  Nature    and    scope    of    the      313. 

Massachusetts    workmen's 

compensation  act. 
803.  Text   of  the   Massachusetts      314. 

compensation   act. 

304.  Text  of  an  act  to  authorize 

certain   mutual   insurance      315. 
companies  to  transact  the 
business      of      employers' 
liability      insurance,      so- 
called. 

305.  Text  of  an   act   relative  to      316. 

the  insurance  of  com- 
pensation to  employe's  for 
personal  injuries  received 
in  the  course  of  their  em- 
ployment. 317. 

306.  Text  of  an  act  to  authorize 

certain  advances  from  the 
treasury   of  the  common-      318. 
wealth  to  the  Massachus- 
setts       employe's'     insur-      319. 
ance  association. 

307.  Opinion  of  the  supreme  ju-      319. 

dicial      court      sustaining 
constitutionality    of    com-      320. 
pensation   act. 

308.  Rules     of     Industrial  Acci-      321. 

dent  Board. 

309.  Formal    procedure — List   of 

forms.  322. 

310.  Form     of     notice    to     em- 

ploye's,    (a) 

311.  Form  of  notice  of  claim  of 

common-law  rights,     (b) 

312.  Form  of  notice    of    waiver 

or   rights   under  common      323. 

law     previously     claimed. 

(c)  324. 

747 


Form  of  agreement  for  re- 
deeming liability  by  pay- 
ment of  lump  sum.  (d) 

Form  of  notice  that  an  em- 
ployer has  ceased  to  be  a 
subscriber,  (e) 

Form  of  notice  to  industrial 
accident  board  that  an  in- 
jured employe"  has  refused 
to  submit  himself  to  an 
examination,  (f) 

Form  of  notice  to  employe" 
from  industrial  accident 
board  relative  to  his  re- 
fusal to  submit  himself  to 
an  examination,  (g) 

Form  of  agreement  in  re- 
gard to  compensation. 
00 

Form  of  claim  for  com- 
pensation for  injury,  (i) 

Form   of  notice   of   injury. 

(j) 
Form  of  notice     of    injury. 

(j) 

Form  of  report  of  commit- 
tee on  arbitration,  (k) 

Form  of  application  for  re- 
view of  claim  before  full 
board.  (1) 

Form  of  notice  assessing 
cost  of  proceedings  before 
arbitration  committee  up- 
on party  prosecuting  or 
defending  same  without 
reasonable  grounds,  (m) 

Form  of  receipt  on  account 
of  compensation,  (n) 

Form  of  settlement  re- 
ceipt, (o) 


§  302      WORKMEN'S  COMPENSATION  AND  INSURANCE.      748 

§  302.  Nature  and  scope  of  the  Massachusetts 
workmen's  compensation  act. — The  Massachusetts  act 
affects  directly  or  indirectly  all  employes,  except  domes- 
tic servants  and  farm  laborers.  Employers  who  do  not 
insure  under  the  act,  but  elect  to  remain  under  the  com- 
mon law  are  deprived  of  the  defenses  of  contributory 
negligence,  negligence  of  fellow  servant  and  assumption 
of  risk  by  the  employe.  The  act  allows  the  employer  to 
protect  himself  by  becoming  a  subscriber  to  the  Massa- 
chusetts Employes  Insurance  Association,  or  by  insuring 
the  liability  to  pay  the  compensation  in  a  company,  au- 
thorized to  do  liability  insurance  business  in  Massachu- 
setts. 

The  employe  is  deprived  of  all  compensation  where 
the  injury  is  caused  by  his  own  "serious  and  wilful  mis- 
conduct." The  amount  of  the  compensation  is  doubled 
where  the  injury  is  due  to  the  "serious  and  wilful  mis- 
conduct of  his  employer,"  or  "of  any  person  regularly 
entrusted  with  and  exercising  the  power  of  superintend- 
ence." 

An  employe  of  a  subscriber  may  elect  to  sue  at  law 
by  giving  his  employer  notice  in  writing  at  the  time  of 
his  contract  of  hire,  that  he  claims  such  right,  or  if  the 
contract  of  hire  is  made  before  the  employer  becomes  a 
subscriber,  then  the  employe  must  give  the  notice  with- 
in thirty  days  of  the  notice  of  such  subscription. 

The  act  requires  all  employers  to  keep  a  record  of 
injuries  received  by  employes  in  the  course  of  their 
employment,  and  report  the  same  in  detail  within  forty- 
eight  hours  of  their  occurrence  under  penalty  of  a  fine 
of  $50  for  each  failure  to  do  so. 

The  act  provides  in  considerable  detail  for  the  estab- 
lishment of  an  industrial  accident  board,  which  is  given 
general  supervision  over  all  parties  affected  and  this 
board  is  clothed  with  quasi-judicial  powers. 


749  MASSACHUSETTS  ACT.  §  303 

§  303.  Text  of  the  Massachusetts  compensation  act. 
— The  act  is  divided  into  five  parts  and  is  as  follows : 

PART  I— MODIFICATION  OF  REMEDIES. 

Sec.  1.  In  an  action  to  recover  damages  for  per- 
sonal injury  sustained  by  an  employe  in  the  course  of 
his  employment,  or  for  death  resulting  from  personal 
injury  so  sustained,  it  shall  not  be  a  defense : 

1.  That  the  employe  was  negligent; 

2.  That  the  injury  was  caused  by  the  negligence  of 
a  fellow  employe;      / 

3.  That  the  employe  had  assumed  the  risk  of  the 
injury. 

Sec.  2.  The  provisions  of  section  one  shall  not  apply 
to  actions  to  recover  damages  for  personal  injuries  sus- 
tained by  domestic  servants  and  farm  laborers. 

Sec.  3.  The  provisions  of  section  one  shall  not 
apply  to  actions  to  recover  damages  for  personal  injur- 
ies sustained  by  employes  of  a  subscriber. 

Sec.  4.  The  provisions  of  sections  one  hundred  and 
twenty-seven  to  one  hundred  and  thirty-five,  inclusive, 
and  of  one  hundred  and  forty-one  to  one  hundred  and 
forty-three,  inclusive,  of  chapter  five  hundred  and  four- 
teen of  the  acts  of  the  year  nineteen  hundred  and  nine, 
and  of  any  acts  in  amendment  thereof,  shall  not  apply  to 
employes  of  a  subscriber  while  this  act  is  in  effect. 

Sec.  5.  An  employe  of  a  subscriber  shall  be  held  to 
have  waived  his  right  of  action  at  common  law  to  recov- 
er damages  for  personal  injuries  if  he  shall  not  have 
given  his  employer,  at  the  time  of  his  contract  of  hire, 
notice  in  writing  that  he  claimed  such  right,  or  if  the 
contract  of  hire  was  made  before  the  employer  became 
a  subscriber,  if  the  employe  shall  not  have  given  the 
said  notice  within  thirty  days  of  notice  of  such  subscrip- 
tion. An  employe  who  has  given  notice  to  his  employer 
that  he  claimed  his  right  of  action  at  common  law  may 
waive  such  claim  by  a  notice  in  writing  which  shall  take 


§  3°3      WORKMEN'S  COMPENSATION  AND  INSURANCE.      750 

effect  five  days  after  it  is  delivered  to  the  employer  or 
his  agent.     (See  Ch.  666  Mass.  Acts  of  1912.) 

PART  II— PAYMENTS. 

Sec.  1.  If  an  employe,  who  has  not  given  notice 
of  his  claim  of  common  law  rights  of  action,  as  pro- 
vided in  Part  I,  section  five,  or  who  has  given  such 
notice  and  has  waived  the  same,  receives  a  personal 
injury  arising  out  of  and  in  the  course  of  his  employ- 
ment, he  shall  be  paid  compensation  by  the  association, 
as  hereinafter  provided,  if  his  employer  is  a  subscriber 
at  the  time  of  the  injury. 

Sec.  2.  If  the  employe  is  injured  by  reason  of  his 
serious  and  wilful  misconduct,  he  shall  not  receive  com- 
pensation. 

Sec.  3.  (As  amended  by  Section  1  of  Ch.  571,  Acts 
of  1912).  If  the  employe  is  insured  by  reason  of  the 
serious  and  wilful  misconduct  of  a  subscriber  or  of  any 
person  regularly  entrusted  with  and  exercising  the 
powers  of  superintendence,  the  amounts  of  compensa- 
tion hereinafter  provided  shall  be  doubled.  In  such 
case  the  subscriber  shall  repay  to  the  association  the 
extra  compensation  paid  to  the  employe.  If  a  claim  is 
made  under  this  section,  the  subscriber  shall  be  allowed 
to  appear  and  defend  against  such  claim  only. 

Sec.  4.  No  compensation  shall  be  paid  under  this 
act  for  any  injury  which  does  not  incapacitate  the  em- 
ploye for  a  period  of  at  least  two  weeks  from  earning 
full  wages,  but  if  incapacity  extends  beyond  the  period 
of  two  weeks,  compensation  shall  begin  on  the  fifteenth 
day  after  the  injury. 

Sec.  5.  During  the  first  two  weeks  after  the  injury, 
the  association  shall  furnish  reasonable  medical  and  hos- 
pital services,  and  medicines  when  they  are  needed. 

Sec.  6.  If  death  results  from  the  injury,  the  associa- 
tion shall  pay  the  dependents  of  the  employe,  wholly 
dependent  upon  his  earnings  for  support  at  the  time  of 
the  injury,  a  weekly  payment  equal  to  one-half  his  aver- 


751  MASSACHUSETTS  ACT.  §303 

age  weekly  wages,  but  not  more  than  ten  dollars  nor 
less  than  four  dollars  a  week,  for  a  period  of  three  hun- 
dred weeks  from  the  date  of  the  injury.  If  the  em- 
ploye leaves  dependents  only  partly  dependent  upon  his 
earnings  for  support  at  the  time  of  his  injury,  the  asso- 
ciation shall  pay  such  dependents  a  weekly  compensa- 
tion equal  to  the  same  proportion  of  the  weekly  pay- 
ments for  the  benefit  of  persons  wholly  dependent  as 
the  amount  contributed  by  the  employe  to  such  partial 
dependents  bears  to  the  annual  earnings  of  the  de- 
ceased at  the  time  of  his  injury.  When  weekly  pay- 
ments have  been  made  to  an  injured  employe  before  his 
death,  the  compensation  to  dependents  shall  begin  from 
the  date  of  the  last  of  such  payments,  but  shall  not  con- 
tinue more  than  three  hundred  weeks  from  the  date  of 
the  injury. 

Sec.  7.  The  following  persons  shall  be  conclusive- 
ly presumed  to  be  wholly  dependent  for  support  upon 
a  deceased  employe: — 

(a)  A  wife  upon  a  husband  with  whom  she  lives 
at  the  time  of  his  death. 

(b)  A  husband  upon  a  wife  with  whom  he  lives  at 
the  time  of  her  death. 

(c)  A  child  or  children  under  the  age  of  eighteen 
years  (or  over  said  age,  but  physically  or  mentally  inca- 
pacitated from  earning)  upon  the  parent  with  whom  he 
is  or  they  are  living  at  the  time  of  the  death  of  such 
parent,  there  being  no  surviving  dependent  parent.     In 
case  there  is  more  than  one  child  thus  dependent,  the 
death  benefit  shall  be  divided  equally  among  them. 

In  all  other  cases  questions  of  dependency,  in  whole 
or  in  part,  shall  be  determined  in  accordance  with  the 
fact,  as  the  fact  may  be  at  the  time  of  the  injury ;  and 
in  such  other  cases,  if  there  is  more  than  one  person 
wholly  dependent,  the  death  benefit  shall  be  divided 
equally  among  them,  and  persons  partly  dependent,  if 
any,  shall  receive  no  part  thereof;  if  there  is  no  one 


§  3°3      WORKMEN'S  COMPENSATION  AND  INSURANCE.      752 

wholly  dependent  and  more  than  one  person  partly  de- 
pendent, the  death  benefit  shall  be  divided  among  them 
according  to  the  relative  extent  of  their  dependency. 

Sec.  8.  If  the  employe  leaves  no  dependents,  the 
association  shall  pay  the  reasonable  expense  of  his  last 
sickness  and  burial,  which  shall  not  exceed  two  hundred 
dollars. 

Sec.  9.  While  the  incapacity  for  work  resulting 
from  the  injury  is  total,  the  association  shall  pay  the  in- 
jured employe  a  weekly  compensation  equal  to  one-half 
his  average  weekly  wages,  but  not  more  than  ten  dollars 
nor  less  than  four  dollars  a  week;  and  in  no  case  shall 
the  period  covered  by  such  compensation  be  greater  than 
five  hundred  weeks,  nor  the  amount  more  than  three 
thousand  dollars. 

Sec.  10.  While  the  incapacity  for  work  resulting 
from  the  injury  is  partial,  the  association  shall  pay  the 
injured  employe  a  weekly  compensation  equal  to  one- 
half  the  difference  between  his  average  weekly  wages 
before  the  injury  and  the  average  weekly  wages  which 
he  is  able  to  earn  thereafter,  but  not  more  than  ten  dol- 
lars a  week;  and  in  no  case  shall  the  period  covered  by 
such  compensation  be  greater  than  three  hundred  weeks 
from  the  date  of  the  injury. 

Sec.  11.  (As  amended  by  Section  2,  Ch.  571,  Acts 
of  1912).  In  case  of  the  following  specified  injuries 
the  amounts  hereinafter  named  shall  be  paid  in  addition 
to  all  other  compensation: 

(a)  For  the  loss  by  severance  of  both  hands  at  or 
above  the  wrist,  or  both  feet  at  or  above  the  ankle,  or 
the  loss  of  one  hand  and  one  foot,  or  the  reduction  to 
one-tenth  of  normal  vision  in  both  eyes  with  glasses, 
one-half  of  the  average  weekly  wages  of  the  injured  per- 
son, but  not  more  than  ten  dollars  nor  less  than  four 
dollars  a  week,  for  a  period  of  one  hundred  weeks. 

(b)  For  the  loss  by  severance  of  either  hand  at  or 
above  the  wrist,  or  either  foot  at  or  above  the  ankle,  or 


753  MASSACHUSETTS  ACT.  §  303 

the  reduction  to  one-tenth  of  normal  vision  in  either 
eye  with  glasses,  one-half  the  average  weekly  wages  of 
the  injured  person,  but  not  more  than  ten  dollars  nor  less 
than  four  dollars  a  week,  for  a  period  of  fifty  weeks. 

(c)  For  the  loss  by  severance  at  or  above  the  sec- 
ond joint  of  two  or  more  fingers,  including  thumbs,  or 
toes,  one-half  the  average  weekly  wages  of  the  injured 
person,  but  not  more  than  ten  dollars  nor  less  than  four 
dollars  a  week,  for  a  period  of  twenty-five  weeks. 

(d)  For    the    loss    by   severance    of    at    least    one 
phalange  of  a  finger,  thumb,  or  toe,  one-half  the  aver- 
age weekly  wages  of  the  injured  person,  but  not  more 
than  ten  dollars  nor  less  than  four  dollars  a  week,  for  a 
period  of  twelve  weeks. 

Sec.  12.  No  savings  or  insurance  of  the  injured  em- 
ploye, independent  of  this  act,  shall  be  taken  into  con- 
sideration in  determining  the  compensation  to  be  paid 
hereunder,  nor  shall  benefits  derived  from  any  other 
source  than  the  association  be  considered  in  fixing  the 
compensation  under  this  act. 

Sec.  13.  The  compensation  payable  under  this  act 
in  case  of  the  death  of  the  injured  employe  shall  be 
paid  to  his  legal  representative;  or,  if  he  has  no  legal 
representative,  to  his  dependents;  or,  if  he  leaves  no  de- 
pendents, to  the  persons  to  whom  payment  of  the  ex- 
penses for  the  last  sickness  and  burial  is  due.  If  the 
payment  is  made  to  the  legal  representative  of  the  de- 
ceased employe,  it  shall  be  paid  by  him  to  the  depend- 
ents or  other  persons  entitled  thereto  under  this  act. 

Sec.  14.  If  an  injured  employe  is  mentally  incom- 
petent or  is  a  minor  at  the  time  when  any  right  or 
privilege  accrues  to  him  under  this  act,  his  guardian  or 
next  friend  may  in  his  behalf  claim  and  exercise  such 
right  or  privilege. 

Sec.  15.  No  proceedings  for  compensation  for  an 
injury  under  this  act  shall  be  maintained  unless  a  notice 
of  the  injury  shall  have  been  given  to  the  association  or 

43— BOTD  W  C 


§  3°3      WORKMEN'S  COMPENSATION  AND  INSURANCE.      754 

subscriber  as  soon  as  practicable  after  the  happening 
thereof,  and  unless  the  claim  for  compensation  with  re- 
spect to  such  injury  shall  have  been  made  within  six 
months  after  the  occurrence  of  the  same;  or,  in  case  of 
the  death  of  the  employe,  or  in  the  event  of  his  physical 
or  mental  incapacity,  within  six  months  after  death  or 
the  removal  of  such  physical  or  mental  incapacity. 

Sec.  16.  (As  amended  by  Chapter  172,  Acts  of  1912, 
and  Section  3  of  Chapter  571,  Acts  of  1912).  The  said 
notice  shall  be  in  writing,  and  shall  state  in  ordinary 
language  the  time,  place  and  cause  of  the  injury,  and 
shall  be  signed  by  the  person  injured,  or  by  a  person  in 
his  behalf,  or,  in  the  event  of  his  death,  by  his  legal  rep- 
resentative or  by  a  person  in  his  behalf,  or  by  a  person  to 
whom  payments  may  be  due  under  this  act  or  by  a  per- 
son in  his  behalf.  Any  form  of  written  communication 
signed  by  any  person  who  may  give  the  notice  as  above 
provided,  which  contains  the  information  that  the  per- 
son has  been  so  injured,  giving  the  time,  place  and  cause 
of  the  injury,  shall  be  considered  a  sufficient  notice. 

Sec.  17.  The  notice  shall  be  served  upon  the  asso- 
ciation, or  an  officer  or  agent  thereof,  or  upon  the  sub- 
scriber, or  upon  one  subscriber,  if  there  are  more  sub- 
scribers than  one,  or  upon  any  officer  or  agent  of  a  cor- 
poration if  the  subscriber  is  a  corporation,  by  delivering 
the  same  to  the  person  on  whom  it  is  to  be  served,  or 
leaving  it  at  his  residence  or  place  of  business,  or  by 
sending  it  by  registered  mail  addressed  to  the  person  or 
corporation  on  whom  it  is  to  be  served,  at  his  last 
known  residence  or  place  of  business. 

Sec.  18.  A  notice  given  under  the  provisions  of  this 
act  shall  not  be  held  invalid  or  insufficient  by  reason  of 
any  inaccuracy  in  stating  the  time,  place  or  cause  of 
the  injury,  unless  it  is  shown  that  it  was  the  intention 
to  mislead  and  the  association  was  in  fact  misled  there- 
by. Want  of  notice  shall  not  be  a  bar  to  proceedings 
under  this  act,  if  it  be  shown  that  the  association,  sub- 
scriber, or  agent  had  knowledge  of  the  injury. 


755  MASSACHUSETTS  ACT.  §  303 

Sec.  19.  (As  amended  by  section  4  of  chapter  571, 
Acts  of  1912).  After  an  employe  has  received  an  injury, 
and  from  time  to  time  thereafter  during  the  continuance 
of  his  disability  he  shall,  if  so  requested  by  the  associa- 
tion or  subscriber,  submit  himself  to  an  examination  by 
a  physician  or  surgeon  authorized  to  practice  medicine 
under  the  laws  of  the  commonwealth,  furnished  and 
paid  for  by  the  association  or  subscriber.  The  em- 
ploye shall  have  the  right  to  have  a  physician  pro- 
vided and  paid  for  by  himself  present  at  the  examina- 
tion. If  he  refuses  to  submit  himself  for  the  examina- 
tion, or  in  any  way  obstructs  the  same,  his  right  to  com- 
pensation shall  be  suspended,  and  his  compensation 
during  the  period  of  suspension  may  be  forfeited. 

Sec.  20.  No  agreement  by  an  employe  to  waive  his 
rights  to  compensation  under  this  act  shall  be  valid. 

Sec.  21.  No  payment  under  this  act  shall  be  as- 
signable or  subject  to  attachment,  or  be  liable  in  any 
way  for  any  debts. 

Sec.  22.  Whenever  any  weekly  payment  has  been 
continued  for  not  less  than  six  months,  the  liability 
therefor  may  in  unusual  cases  be  redeemed  by  the  pay- 
ment of  a  lump  sum  by  agreement  of  the  parties,  sub- 
ject to  the  approval  of  the  industrial  accident  board. 

Sec.  23.  (As  amended  by  section  5  of  chapter  571, 
Acts  of  1912).  The  claim  for  compensation  shall  be  in 
writing  and  shall  state  the  time,  place,  cause  and  nature 
of  the  injury;  it  shall  be  signed  by  the  person  injured 
or  by  a  person  in  his  behalf,  or,  in  the  event  of  his  death, 
by  his  legal  representative  or  by  a  person  in  his  behalf, 
or  by  a  person  to  whom  payments  may  be  due  under 
this  act  or  by  a  person  in  his  behalf,  and  shall  be  filed 
with  the  industrial  accident  board.  The  failure  to  make 
a  claim  within  the  period  prescribed  by  section  fifteen 
shall  not  be  a  bar  to  the  maintenance  of  proceedings 
under  this  act  if  it  is  found  that  it  was  occasioned  by 
mistake  or  other  reasonable  cause. 


§  3°3  WORKMEN'S  COMPENSATION  AND  INSURANCE.  756 
PART  III— PROCEDURE. 

Sec.  1.  (As  amended  by  section  6  of  chapter  571, 
Acts  of  1912).  There  shall  be  an  industrial  accident 
board  consisting  of  five  members,  to  be  appointed  by 
'the  governor,  by  and  with  the  advice  and  consent  of  the 
council,  one  of  whom  shall  be  designated  by  the  gover- 
nor as  chairman.  The  term  of  office  of  members  of  this 
board  shall  be  five  years,  except  that  when  first  consti- 
tuted one  member  shall  be  appointed  for  one  year,  one 
for  two  years,  one  for  three  years,  one  for  four  years, 
and  one  for  five  years.  Thereafter  one  member  shall  be 
appointed  every  year  for  the  full  term  of  five  years. 

Sec.  2.  (As  amended  by  section  7  of  chapter  571, 
Acts  of  1912).  The  salaries  and  expenses  of  the  board 
shall  be  paid  by  the  commonwealth.  The  salary  of  the 
chairman  shall  be  five  thousand  dollars  a  year,  and  the 
salary  of  the  other  members  shall  be  forty-five  hundred 
($4,500)  dollars  a  year  each.  The  board  may  appoint  a 
secretary  at  a  salary  of  not  more  than  three  thousand 
dollars  a  year  and  may  remove  him.  It  shall  also  be  al- 
lowed an  annual  sum,  not  exceeding  ten  thousand  dol- 
lars, for  clerical  service,  and  travelling  and  other  neces- 
sary expenses.  The  board  shall  be  provided  with  an 
office  in  the  state  house  or  in  some  other  suitable  build- 
ing in  the  city  of  Boston,  in  which  its  records  shall  be 
kept. 

Sec.  3.  (As  amended  by  section  8  of  chapter  571, 
Acts  of  1912).  The  board  may  make  rules  not  inconsist- 
ent with  this  act  for  carrying  out  the  provisions  of  the 
act.  Process  and  procedure  under  this  act  shall  be  as 
summary  as  reasonably  may  be.  The  board  or  any  mem- 
ber thereof  shall  have  the  power  to  subpoena  witnesses, 
administer  oaths,  and  to  examine  such  parts  of  the  books 
and  records  of  the  parties  to  a  proceeding  as  relate  to 
questions  in  dispute.  '  The  fees  for  attending  as  a1  witness 
before  the  industrial  accident  board  shall  be  one  dollar 
and  fifty  cents  a  day,  for  attending  before  an  arbitration 


757  MASSACHUSETTS  ACT.  §  303 

committee  fifty  cents  a  day;  in  both  cases  five  cents  a 
mile  for  travel  out  and  home. 

The  superior  court  shall  have  power  to  enforce  by 
proper  proceedings  the  provisions  of  this  section  relat- 
ing to  the  attendance  and  testimony  of  witnesses  and 
the  examination  of  books  and  records. 

Sec.  4.  (As  amended  by  section  9  of  chapter  571, 
Acts  of  1912).  If  the  association  and  the  injured  employe 
reach  an  agreement  in  regard  to  compensation  under 
this  act,  a  memorandum  of  the  agreement  shall  be  filed 
with  the  industrial  accident  board  and,  if  approved  by 
it,  thereupon  the  memorandum  shall  for  all  purposes 
be  enforceable  under  the  provisions  of  Part  III,  section 
eleven.  Such  agreements  shall  be  approved  by  said 
board  only  when  the  terms  conform  to  the  provisions  of 
this  act. 

Sec.  5.  (As  amended  by  section  10  of  chapter  571, 
Acts  of  1912).  If  the  association  and  the  injured  employe 
fail  to  reach  an  agreement  in  regard  to  compensation 
under  this  act,  either  party  may  notify  the  industrial 
accident  board  who  shall  thereupon  call  for  the  forma- 
tion of  a  committee  of  arbitration.  The  committee  of 
arbitration  shall  consist  of  three  members,  one  of  whom 
shall  be  a  member  of  the  industrial  accident  board  and 
shall  act  as  chairman.  The  other  two  members  shall  be 
named,  respectively,  by  the  two  parties.  If  the  sub- 
scriber has  appeared  under  the  provisions  of  Part  II,  Sec- 
tion 3,  the  member  named  by  the  association  shall  be 
subject  to  his  approval.  If  a  vacancy  occurs  it  shall  be 
filled  by  the  party  whose  representative  is  unable  to  act. 

The  arbitrators  appointed  by  the  parties  shall  be 

sworn  by  the  chairman  as  follows :  I, 

do  solemnly  swear  that  I  will  faithfully  perform  my  duty 
as  arbitrator  and  will  not  be  influenced  in  my  decision  by 
any  feeling  of  friendship  or  partiality  toward  either  party. 
So  help  me  God. 

Sec.  6.     (As  amended  by  section   11,  chapter  571, 


§  3°3      WORKMEN'S  COMPENSATION  AND  INSURANCE.      758 

Acts  of  1912).  It  shall  be  the  duty  of  the  industrial  acci- 
dent board,  upon  notification  that  the  parties  have  failed 
to  reach  an  agreement,  to  request  both  parties  to  ap- 
point their  respective  representatives  on  the  committee 
of  arbitration.  The  board  shall  designate  one  of  its 
members  to  act  as  chairman,  and,  if  either  party  does 
not  appoint  its  member  on  this  committee  within  seven 
days  after  notification,  as  above  provided,  or  after  a 
vacancy  has  occurred,  the  board  or  any  member  thereof 
shall  fill  the  vacancy  and  notify  the  parties  to  that  effect. 

Sec.  7.  (As  amended  by  section  12  of  chapter  571, 
Acts  of  1912).  The  committee  on  arbitration  shall  make 
such  inquiries  and  investigations  as  it  shall  deem  neces- 
sary. The  hearings  of  the  committee  shall  be  held  in 
the  city  or  town  where  the  injury  occurred,  and  the  deci- 
sion of  the  committee  together  with  a  statement  of  the 
evidence  submitted  before  it,  its  findings  of  fact,  rulings 
of  law  and  any  other  matters  pertinent  to  questions 
.arising  before  it  shall  be  filed  with  the  industrial  accident 
board.  Unless  a  claim  for  a  review  is  filed  by  either 
party  within  seven  days,  the  decision  shall  be  enforcible 
under  the  provisions  of  Part  III,  section  eleven. 

Sec.  8.  The  industrial  accident  board  or  any  mem- 
ber thereof  may  appoint  a  duly  qualified  impartial  physi- 
cian to  examine  the  injured  employe  and  to  report. 
The  fee1  for  this  service  shall  be  five  dollars  and  travelling 
expenses,  but  the  board  may  allow  additional  reasonable 
amounts  in  extraordinary  cases. 

Sec.  9.  The  arbitrators  named  by  or  for  the  parties 
to  the  dispute  shall  each  receive  five  dollars  as  a  fee  for 
his  services,  but  the  industrial  accident  board  or  any 
member  thereof  may  allow  additional  reasonable 
amounts  in  extraordinary  cases.  The  fees  shall  be  paid 
by  the  association,  which  shall  deduct  an  amount  equal 
to  one-third  of  the  sum  from  any  compensation  found 
due  the  employe. 

Sec.  10.  (As  amended  by  section  13  of  chapter  571, 
Acts  of  1912).  If  a  claim  for  a  review  is  filed,  as  provided 


759  MASSACHUSETTS  ACT.  §  303 

in  Part  III,  section  seven,  the  board  shall  hear  the 
parties  and  may  hear  evidence  in  regard  to  any  or  all 
matters  pertinent  thereto  and  may  revise  the  decision 
of  the  committee  in  whole  or  in  part,  or  may  refer  the 
matter  back  to  the  committee  for  further  findings  of 
fact,  and  shall  file  its  decision  with  the  records  of  the 
proceedings  and  notify  the  parties  thereof.  No  party 
shall  as  a  matter  of  right  be  entitled  to  a  second  hearing 
upon  any  question  of  fact. 

Sec.  11.  (As  amended  by  section  14  of  chapter  571, 
Acts  of  1912).  Any  party  in  interest  may  present  certi- 
fied copies  of  an  order  or  decision  of  the  board,  a  deci- 
sion of  an  arbitration  committee  from  which  no  claim 
for  review  has  been  filed  within  the  time  allowed  there- 
for, or  a  memorandum  of  agreement  approved  by  the 
board,  and  all  papers  in  connection  therewith,  to  the 
superior  court  for  the  county  in  which  the  injury  oc- 
curred or  for  the  county  of  Suffolk,  whereupon  said 
court  shall  render  a  decree  in  accordance  therewith  and 
notify  the  parties.  Such  decree  shall  have  the  same 
effect  and  all  proceedings  in  relation  thereto  shall  there- 
after be  the  same  as  though  rendered  in  a  suit  duly  heard 
and  determined  by  said  court,  except  that  there  shall  be 
no  appeal  therefrom  upon  questions  of  fact,  or  where 
the  decree  is  based  upon  a  decision  of  an  arbitration 
committee  or  a  memorandum  of  agreement,  and  that 
there  shall  be  no  appeal  from  a  decree  based  upon  an 
order  or  decision  of  the  board  which  has  not  been  pre- 
sented to  the  court  within  ten  days  after  the  notice  of 
the  filing  thereof  by  the  board.  Upon  the  presentation 
to  it  of  a  certified  copy  of  a  decision  of  the  industrial 
accident  board  ending,  diminishing  or  increasing  a 
weekly  payment  under  the  provisions  of  Part  III,  sec- 
tion twelve,  the  court  shall  revoke  or  modify  the  decree 
to  conform  to  such  decision. 

Sec.  12.  Any  weekly  payment  under  this  act  may 
be  reviewed  by  the  industrial  accident  board  at  the  re- 


§  3°3      WORKMEN'S  COMPENSATION  AND  INSURANCE.      760- 

quest  of  the  association  or  of  the  employe;  and  on  such 
review  it  may  be  ended,  diminished  or  increased,  sub- 
ject to  the  maximum  and  minimum  amounts  above  pro- 
vided, if  the  board  finds  that  the  condition  of  the  em- 
ploye warrants  such  action. 

Sec.  13.  Fees  of  attorneys  and  physicians  for  services 
under  this  act  shall  be  subject  to  the  approval  of  the 
industrial  accident  board. 

Sec.  14.  If  the  committee  of  arbitration,  industrial 
accident  board,  or  any  court  before  whom  any  proceed- 
ings are  brought  under  this  act  determines  that  such 
proceedings  have  been  brought,  prosecuted,  or  defended 
without  reasonable  ground,  it  shall  assess  the  whole  cost 
of  the  proceedings  upon  the  party  who  has  so  brought,, 
prosecuted  or  defended  them. 

Sec.  15.  Where  the  injury  for  which  compensation 
is  payable  under  this  act  was  caused  under  circum- 
stances creating  a  legal  liability  in  some  person  other 
than  the  subscriber  to  pay  damages  in  respect  thereof,, 
the  employe  may  at  his  option  proceed  either  at  law 
against  that  person  to  recover  damages,  or  against  the 
association  for  compensation  under  this  act,  but  not 
against  both;  and  if  compensation  be  paid  under  this 
act,  the  association  may  enforce  in  the  name  of  the  em- 
ploye, or  in  its  own  name  and  for  its  own  benefit,  the 
liability  of  such  other  person. 

Sec.  16.  (As  amended  by  section  15  of  chapter  571, 
Acts  of  1912).  All  questions  arising  under  this  act,  if  not 
settled  by  agreement  by  the  parties  interested  therein, 
shall,  except  as  otherwise  herein  provided,  be  deter- 
mined by  the  industrial  accident  board.  The  decisions 
of  the  industrial  accident  board  shall  for  all  purposes 
be  enforceable  under  the  provisions  of  Part  III,  section 
eleven. 

Sec.  17.  If  a  subscriber  enters  into  a  contract,  writ- 
ten or  oral,  with  an  independent  contractor  to  do  such 
subscriber's  work,  or  if  such  a  contractor  enters  into- 


761  MASSACHUSETTS  ACT.  §  303 

a  contract  with  a  subcontractor  to  do  all  or  any  part  of 
the  work  comprised  in  such  contract  with  the  subscriber, 
and  the  association  would,  if  such  work  were  executed 
by  employes  immediately  employed  by  the  subscriber, 
be  liable  to  pay  compensation  under  this  act  to  those 
employes,  the  association  shall  pay  to  such  employes 
any  compensation  which  would  be  payable  to  them  un- 
der this  act  if  the  independent  or  subcontractors  were 
subscribers.  The  association,  however,  shall  be  entitled 
to  recover  indemnity  from  any  other  person  who  would 
have  been  liable  to  such  employes  independently  of  this 
section,  and  if  the  association  has  paid  compensation 
under  the  terms  of  this  section,  it  may  enforce  in  the 
name  of  the  employe,  or  in  its  own  name  and  for  the 
benefit  of  the  association,  the  liability  of  such  other  per- 
son. This  section  shall  not  apply  to  any  contract  of 
an  independent  or  subcontractor  which  is  merely  ancil- 
lary and  incidental  to,  and  is  no  part  of  or  process  in, 
the  trade  or  business  carried  on  by  the  subscriber,  nor 
to  any  case  where  the  injury  occurred  elsewhere  than 
on,  in,  or  about  the  premises  on  which  the  contractor  has 
undertaken  to  execute  the  work  for  the  subscriber  or 
which  are  under  the  control  or  management  of  the  sub- 
scriber. 

Sec.  18.  Every  employer  shall  hereafter  keep  a  rec- 
ord of  all  injuries,  fatal  or  otherwise,  received  by  his 
employes  in  the  course  of  their  employment.  Within 
forty-eight  hours,  not  counting  Sundays  and  legal  holi- 
days, after  the  occurrence  of  an  accident  resulting  in 
personal  injury  a  report  thereof  shall  be  made  in  writing 
to  the  industrial  accident  board  on  blanks  to  be  procured 
from  the  board  for  the  purpose. 

Upon  the  termination  of  the  disability  of  the  injured 
employe  or,  if  such  disability  extends  beyond  a  period 
of  sixty  days,  at  the  expiration  of  such  period,  the  em- 
ployer shall  make  a  supplemental  report  on  blanks  to  be 
procured  from  the  board  for  that  purpose. 


§  303      WORKMEN'S  COMPENSATION  AND  INSURANCE.      762 

The  said  reports  shall  contain  the  name  and  nature 
of  the  business  of  the  employer,  the  location  of  the  es- 
tablishment, the  name,  age,  sex  and  occupation  of  the 
injured  employe,  and  shall  state  the  date  and  hour  of  the 
accident,  the  nature  and  cause  of  the  injury,  and  such 
other  information  as  may  be  required  by  the  board. 

Any  employer  who  refuses  or  neglects  to  make  the 
report  required  by  this  section  shall  be  punished  by  a 
fine  of  not  more  than  fifty  dollars  for  each  offense. 

PART    IV— THE    MASSACHUSETTS     EMPLOYES     INSURANCE 
ASSOCIATION.! 

Sec.  1.  The  Massachusetts  Employes  Insurance  As- 
sociation is  hereby  created  a  body  corporate  with  the 
powers  provided  in  this  act  and  with  all  the  general 
corporate  powers  incident  thereto. 

Sec.  2.  The  governor  shall  appoint  a  board  of  di- 
rectors of  the  association,  consisting  of  fifteen  members, 
who  shall  serve  for  a  term  of  one  year,  or  until  their  suc- 
cessors are  elected  by  ballot  by  the  subscribers  at  such 
time  and  for  such  term  as  the  by-laws  shall  provide. 

Sec.  3.  Until  the  first  meeting  of  the  subscribers 
the  board  of  directors  shall  have  and  exercise  all  the 
powers  of  the  subscribers,  and  may  adopt  by-laws  not 
inconsistent  with  the  provisions  of  this  act,  which  shall 
be  in  effect  until  amended  or  repealed  by  the  subscribers. 

Sec.  4.  The  board  of  directors  shall  annually  choose 
by  ballot  a  president,  who  shall  be  a  member  of  the 
board,  a  secretary,  a  treasurer,  and  such  other  officers 
as  the  by-laws  shall  provide. 

Sec.  5.  Seven  or  more  of  the  directors  shall  con- 
stitute a  quorum  for  the  transaction  of  business. 

Vacancies  in  any  office  may  be  filled  in  such  manner 
as  the  by-laws  shall  provide. 

Sec.  6.  Any  employer  in  the  commonwealth  may 
become  a  subscriber. 

igee  chapter  721,  Acts  of  1912. 


763  MASSACHUSETTS  ACT.  §  303 

Sec.  7.  The  board  of  directors  shall,  within  thirty 
days  of  the  subscription  of  twenty-five  employers,  call 
the  first  meeting  of  the  subscribers  by  a  notice  in  writ- 
ing mailed  to  each  subscriber  at  his  place  of  business 
not  less  than  ten  days  before  the  date  fixed  for  the 
meeting. 

Sec.  8.  In  any  meeting  of  the  subscribers  each  sub- 
scriber shall  be  entitled  to  one  vote,  and  if  a  subscriber 
has  five  hundred  employes  to  whom  the  association  is 
bound  to  pay  compensation  he  shall  be  entitled  to  two 
votes,  and  he  shall  be  entitled  to  one  additional  vote  for 
each  additional  five  hundred  employes  to  whom  the  as- 
sociation is  bound  to  pay  compensation,  but  no  sub- 
scriber shall  cast,  by  his  own  right  or  by  the  right  of 
proxy,  more  than  twenty  votes. 

Sec.  9.  No  policy  shall  be  issued  by  the  association 
until  not  less  than  one  hundred  employers  have  sub- 
scribed, who  have  not  less  than  ten  thousand  employes 
to  whom  the  association  may  be  bound  to  pay  compen- 
sation. 

Sec.  10.  No  policy  shall  be  issued  until  a  list  of 
the  subscribers,  with  the  number  of  employes  of  each, 
together  with  such  other  information  as  the  insurance 
commissioner  may  require,  shall  have  been  filed  at  the 
insurance  department,  nor  until  the  president  and  secre- 
tary of  the  association  shall  have  certified  under  oath 
that  every  subscription  in  the  list  so  filed  is  genuine  and 
made  with  an  agreement  by  every  subscriber  that  he 
will  take  the  policies  subscribed  for  by  him  within  thirty 
days  of  the  granting  of  a  license  to  the  association  by 
the  insurance  commissioner  to  issue  policies. 

Sec.  11.  If  the  number  of  subscribers  falls  below 
one  hundred,  or  the  number  of  employes  to  whom  the 
association  may  be  bound  to  pay  compensation  falls  be- 
low ten  thousand,  no  further  policies  shall  be  issued 
until  other  employers  have  subscribed  who,  together 
with  existing  subscribers,  amount  to  not  less  than  one 


§  303      WORKMEN'S  COMPENSATION  AND  INSURANCE.      764 

hundred  who  have  not  less  than  ten  thousand  employes, 
said  subscriptions  to  be  subject  to  the  provisions  con- 
tained in  the  preceding  section. 

Sec.  12.  Upon  the  riling  of  the  certificate  provided 
for  in  the  two  preceding  sections  the  insurance  commis- 
sioner shall  make  such  investigation  as  he  may  deem 
proper  and,  if  his  findings  warrant  it,  grant  a  license 
to  the  association  to  issue  policies. 

Sec.  13.  The  board  of  directors  shall  distribute  the 
subscribers  into  groups  in  accordance  with  the  nature 
of  the  business  and  the  degree  of  the  risk  of  injury. 

Subscribers  within  each  group  shall  annually  pay  in 
cash,  or  notes  absolutely  payable,  such  premiums  as 
may  be  required  to  pay  the  compensation  herein  pro- 
vided for  the  injuries  which  may  occur  in  that  year. 

Sec.  14.  The  association  may  in  its  by-laws  and 
policies  fix  the  contingent  mutual  liability  of  the  sub- 
scribers for  the  payment  of  losses  and  expenses  not  pro- 
vided for  by  its  cash  funds ;  but  such  contingent  liability 
of  a  subscriber  shall  not  be  less  than  an  amount  equal  to 
and  in  addition  to  the  cash  premium. 

Sec.  15.  If  the  association  is  not  possessed  of  cash 
funds  above  its  unearned  premiums  sufficient  for  the 
payment  of  incurred  losses  and  expenses,  it  shall  make 
an  assessment  for  the  amount  needed  to  pay  such  losses 
and  expenses  upon  the  subscribers  liable  to  assessment 
therefor  in  proportion  to  their  several  liability. 

Every  subscriber  shall  pay  his  proportional  part  of 
any  assessments  which  may  be  laid  by  the  association, 
in  accordance  with  law  and  his  contract,  on  account  of 
injuries  sustained  and  expenses  incurred  while  he  is  a 
subscriber. 

Sec.  16.  The  board  of  directors  may,  from  time  to 
time,  by  vote  fix  and  determine  the  amount  to  be  paid 
as  a  dividend  upon  policies  expiring  during  each  year 
after  retaining  sufficient  sums  to  pay  all  the  compensa- 


765  MASSACHUSETTS  ACT.  §  303 

tion  which  may  be  payable  on  account  of  injuries  sus- 
tained and  expenses  incurred. 

All  premiums,  assessments,  and  dividends  shall  be 
fixed  by  and  for  groups  as  heretofore  provided  in  ac- 
cordance with  the  experience  of  each  group,  but  all  the 
funds  of  the  association  and  the  contingent  liability 
of  all  the  subscribers  shall  be  available  for  the  payment 
of  any  claim  against  the  association. 

Sec.  17.  Any  proposed  premium,  assessment,  divi- 
dent  or  distribution  of  subscribers  shall  be  filed  with  the 
insurance  department  and  shall  not  take  effect  until  ap- 
proved by  the  insurance  commissioner  after  such  in- 
vestigation as  he  may  deem  necessary.  (See  chapter 
666,  Acts  of  1912). 

Sec.  18.  The  board  of  directors  shall  make  and  en- 
force reasonable  rules  and  regulations  for  the  preven- 
tion of  injuries  on  the  premises  of  subscribers,  and  for 
this  purpose  the  inspectors  of  the  association  shall  have 
free  access  to  all  such  premises  during  regular  working 
hours. 

Any  subscriber  or  employe  aggrieved  by  any  such 
rule  or  regulation  may  petition  the  industrial  accident 
board  for  a  review,  and  it  may  affirm,  amend,  or  annul 
the  rule  or  regulation. 

Sec.  19.  If  any  officer  of  the  association  shall  falsely 
make  oath  to  any  certificate  required  to  be  filed  with 
the  insurance  commissioner,  he  shall  be  guilty  of  per- 
jury. 

Sec.  20.  Every  subscriber  shall,  as  soon  as  he  se- 
cures a  policy,  give  notice  in  writing  or  print,  to  all 
persons  under  contract  of  hire  with  him  that  he  has  pro- 
vided for  payment  to  injured  employes  by  the  associa- 
tion. 

Sec.  21..  (As  amended  by  section  16  of  chapter  571, 
Acts  of  1912).  Every  subscriber  shall  give  notice  in  writ- 
ing or  print  to  every  person  with  whom  he  is  about  to 
enter  into  a  contract  of  hire  that  he  has  provided  for 


§  3°3      WORKMEN'S  COMPENSATION  AND  INSURANCE.      766 

payment  to  injured  employes  by  the  association.  If  an 
employer  ceases  to  be  a  subscriber  he  shall,  on  or  before 
the  day  on  which  his  policy  expires,  give  notice  thereof 
in  writing  or  print  to  all  persons  under  contract  with 
him.  In  case  of  the  renewal  of  the  policy  no  notice 
shall  be  required  under  the  provisions  of  this  act.  He 
shall  file  a  copy  of  said  notice  with  the  industrial  acci- 
dent board.  The  notices  required  by  this  and  the  pre- 
ceding section  may  be  given  in  the  manner  therein  pro- 
vided or  in  such  other  manner  as  may  be  approved  by 
the  industrial  accident  board. 

Sec.  22.  If  a  subscriber,  who  has  complied  with  all 
the  rules,  regulations  and  demands  of  the  association, 
is  required  by  any  judgment  of  a  court  of  law  to  pay 
to  an  employe  any  damages  on  account  of  personal  in- 
jury sustained  by  such  employe  during  the  period  of 
such  subscription,  the  association  shall  pay  to  the  sub- 
scriber the  full  amount  of  such  judgment  and  the  cost 
assessed  therewith,  if  the  subscriber  shall  have  given  the 
association  notice  in  writing  of  the  bringing  of  the  action 
upon  which  the  judgment  was  recovered  and  an  oppor- 
tunity to  appear  and  defend  the  same. 

Sec.  23.  The  provisions  of  chapter  five  hundred  and 
seventy-six  of  the  acts  of  the  year  nineteen  hundred  and 
seven  and  of  acts  in  amendment  thereof  shall  apply  to 
the  association,  so  far  as  such  provisions  are  pertinent 
and  not  in  conflict  with  the  provisions  of  this  act,  except 
that  the  corporate  powers  shall  not  expire  because  of 
failure  to  issue  policies  or  make  insurance. 

Sec.  24.  The  board  of  directors  appointed  by  the 
governor  under  the  provisions  of  Part  IV,  section  two, 
may  incur  such  expenses  in  the  performance  of  its  duties 
as  shall  be  approved  by  the  governor  and  council.  Such 
expenses  shall  be  paid  from  the  treasury  of  the  common- 
wealth and  shall  not  exceed  in  amount  the  sum  of  fifteen 
thousand  dollars. 


767  MASSACHUSETTS  ACT.  §  303 

PART  V— MISCELLANEOUS  PROVISIONS. 

Section  1.  If  an  employe  of  a  subscriber  files  any 
claim  with  or  accepts  any  payment  from  the  association 
on  account  of  personal  injury,  or  makes  any  agreement, 
or  submits  any  question  to  arbitration,  under  this  act, 
such  action  shall  constitute  a  release  to  the  subscriber 
of  all  claims  or  demands  at  law,  if  any,  arising  from  the 
injury. 

Sec.  2.  The  following  words  and  phrases,  as  used 
in  this  act,  shall,  unless  a  different  meaning  is  plainly 
required  by  the  context,  have  the  following  meaning: — 

"Employer"  shall  include  the  legal  representative  of 
a  deceased  employer. 

"Employe"  shall  include  every  person  in  the  serv- 
ice of  another  under  any  contract  of  hire,  express  or  im- 
plied, oral  or  written,  except  one  whose  employment  is 
but  casual,  or  is  not  in  the  usual  course  of  the  trade, 
business,  profession  or  occupation  of  his  employer.  Any 
reference  to  an  employe  who  has  been  injured  shall, 
when  the  employe  is  dead,  also  include  his  legal  repre- 
sentatives, dependents  and  other  persons  to  whom  com- 
pensation may  be  payable. 

"Dependents"  shall  mean  members  of  the  employe's 
family  or  next  of  kin  who  were  wholly  or  partly  de- 
pendent upon  the  earnings  of  the  employe  for  support 
at  the  time  of  the  injury. 

"Average  weekly  wages"  shall  mean  the  earnings  of 
the  injured  employe  during  the  period  of  twelve  calen- 
dar months  immediately  preceding  the  date  of  injury, 
divided  by  fifty-two;  but  if  the  injured  employe  lost 
more  than  two  weeks'  time  during  such  period  then  the 
earnings  for  the  remainder  of  such  twelve  calendar 
months  shall  be  divided  by  the  number  of  weeks  re- 
maining after  the  time  so  lost  has  been  deducted.  Where, 
by  reason  of  the  shortness  of  the  time  during  which  the 
employe  has  been  in  the  employment  of  his  employer,  or 


§  3°3      WORKMEN'S  COMPENSATION  AND  INSURANCE.      768 

the  nature  or  terms  of  the  employment,  it  is  impractic- 
able to  compute  the  average  weekly  wages,  as  above  de- 
fined, regard  may  be  had  to  the  average  weekly  amount 
which,  during  the  twelve  months  previous  to  the  injury, 
was  being  earned  by  a  person  in  the  same  grade  em- 
ployed at  the  same  work  by  the  same  employer;  or,  if 
there  is  no  person  so  employed  by  a  person  in  the  same 
grade  employed  in  the  same  class  of  employment  and  in 
the  same  district. 

"Association"  shall  mean  the  Massachusetts  Em- 
ployes Insurance  Association. 

"Subscriber"  shall  mean  an  employer  who  has  be- 
come a  member  of  the  association  by  paying  a  year's 
premium  in  advance  and  receiving  the  receipt  of  the 
association  therefor,  provided  that  the  association  holds 
a  license  issued  by  the  insurance  commissioner  as  pro- 
vided in  Part  IV,  section  twelve. 

Sec.  3.  (As  amended  by  section  17  of  chapter  571, 
Acts  of  1912).  Any  liability  insurance  company  author- 
ized to  do  business  within  this  commonwealth  shall  have 
the  same  right  as  the  association  to  insure  the  liability  to 
pay  the  compensation  provided  for  by  Part  II  of  this  act, 
and  when  such  liability  company  issues  a  policy  con- 
ditioned to  pay  such  compensation,  the  holder  of  such 
policy  shall  be  regarded  as  a  subscriber  so  far  as  applic- 
able within  the  meaning  of  this  act,  and  when  any  such 
company  insures  such  payment  of  compensation  it  shall 
be  subject  to  the  provisions  of  Parts  I,  II,  III  and  V  and 
of  section  twenty-two  of  Part  IV  of  this  act,  and  shall 
file  with  the  insurance  department  its  classifications  of 
risks  and  premiums  relating  thereto  and  any  subsequent 
proposed  classifications  or  premiums,  none  of  which 
shall  take  effect  until  the  insurance  commissioner  has 
approved  the  same  as  adequate  for  the  risks  to  which 
they  respectively  apply. 

Sec.  4.  (As  amended  by  section  18  of  chapter  571, 
Acts  of  1912).  Sections  one  hundred  and  thirty-six  to 


769  MASSACHUSETTS  ACT.  §  304 

one  hundred  and  thirty-nine,  inclusive,  of  chapter  five 
hundred  and  fourteen  of  the  acts  of  the  year  nineteen 
hundred  and  nine  are  hereby  repealed. 

Sec.  5.  The  provisions  of  this  act  shall  not  apply 
to  injuries  sustained  prior  to  the  taking  effect  thereof. 

Sec.  6.  (As  amended  by  section  19  of  chapter  571, 
Acts  of  1912).  Part  IV  of  this  act  shall  take  effect  on  the 
first  day  of  January,  nineteen  hundred  and  twelve ;  sec- 
tions one  to  three,  inclusive,  of  Part  III  shall  take  effect 
on  the  tenth  day  of  May,  nineteen  hundred  and  twelve ; 
the  remainder  thereof  shall  take  effect  on  the  first  day  of 
July,  nineteen  hundred  and  twelve. 

§  304.  Text  of  act  to  authorize  certain  mutual  in- 
surance companies  to  transact  the  business  of  employ- 
ers' liability  insurance,  so-called. — This  act,  which  be- 
came effective  March  22,  1912,  provides: 

Sec.  1.  Section  one  of  chapter  two  hundred  and 
fifty-one  of  the  acts  of  the  year  nineteen  hundred  and 
eleven  is  hereby  amended  by  adding  at  the  end  thereof 
the  words: — Mutual  companies  doing  business  and  or- 
ganized prior  to  April  sixth,  nineteen  hundred  and 
eleven,  to  transact  employers'  liability  business  may 
have  and  exercise  all  the  rights  and  powers  conferred  by 
this  section  upon  companies  which  may  be  organized 
hereunder,  but  such  rights  and  powers  shall  not  be  ex- 
ercised unless  authorized  by  a  two-thirds  vote  of  the 
policyholders  present  and  voting  at  a  meeting  duly 
called  for  that  purpose, — so  as  to  read  as  follows: — 
Section  1.  Ten  or  more  persons  who  are  residents  of 
this  commonwealth  may  form  an  insurance  company  on 
the  mutual  plan  to  insure  any  person,  firm  or  corpora- 
tion against  loss  or  damage  on  account  of  the  bodily 
injury  or  death  by  accident  of  any  person,  or  against 
damage  caused  by  automobiles  to  property  of  another, 
for  which  loss  or  damage  such  person,  firm  or  corpora- 
tion is  responsible.  The  corporation  shall  be  formed  in 

49— BOYD  W  C 


§  3°5      WORKMEN'S  COMPENSATION  AND  INSURANCE.      770 

the  manner  described  in,  and  be  subject  to,  the  provi- 
sions of  sections  fifteen  to  twenty,  inclusive,  of  chapter 
one  hundred  and  ten  of  the  Revised  Laws,  except  as  is 
otherwise  provided  herein.  Mutual  companies  doing 
business  and  organized  prior  to  April  sixth,  nineteen 
hundred  and  eleven,  to  transact  employers'  liability  busi- 
ness may  have  and  exercise  all  the  rights  and  powers 
conferred  by  this  section  upon  companies  which  may  be 
organized  hereunder,  but  such  rights  and  powers  shall 
not  be  exercised  unless  authorized  by  a  two-thirds  vote 
of  the  policyholders  present  and  voting  at  a  meeting 
duly  called  for  that  purpose.  (Chapter  311,  Acts  of 
1912.) 

§  305.  Text  of  act  relative  to  the  insurance  of  com- 
pensation to  employes  for  personal  injuries  received  in 
the  course  of  their  employment. — This  act,  which  be- 
came operative  May  28,  1912,  provides: 

Sec.  1.  The  insurance  commissioner  may  with- 
draw his  approval  of  any  premium  or  distribution  of 
subscribers  given  by  him  to  the  Massachusetts  Em- 
ployes Insurance  Association  under  the  provisions  of 
section  seventeen  of  Part  IV  of  chapter  seven  hundred 
and  fifty-one  of  the  acts  of  the  year  nineteen  hundred 
and  eleven,  or  of  any  premium  or  rate  made  by  an  in- 
surance company  and  approved  by  him  under  the  provi- 
sions of  section  three  of  Part  V  of  said  chapter  seven 
hundred  and  fifty-one  as  amended  by  section  seventeen 
of  chapter  five  hundred  and  seventy-one  of  the  acts  of 
the  year  nineteen  hundred  and  twelve. 

Sec.  2.  The  notices  required  by  section  five  of  Part 
I  of  said  chapter  seven  hundred  and  fifty-one  shall  be 
given  in  such  manner  as  the  industrial  accident  board 
may  approve.  (Chapter  666,  Acts  of  1912.) 

§  306.  Text  of  act  to  authorize  certain  advances 
from  the  treasury  of  the  commonwealth  to  the  Massa- 


77  *  MASSACHUSETTS  ACT.  §  305 

chusetts    employes    insurance    association. — This    act, 
which  became  operative  June  6,  1912,  provides: 

Sec.  1.  For  the  purpose  of  enabling  the  Massa- 
chusetts Employes  Insurance  Association  to  carry  out 
the  provisions  of  Part  IV  of  chapter  seven  hundred  and 
fifty-one  of  the  acts  of  the  year  nineteen  hundred  and 
eleven,  the  treasurer  and  receiver  general,  from  time  to 
time,  within  one  year  after  the  date  of  the  passage  of 
this  act,  may  advance  to  the  said  association  from  the 
treasury  of  the  commonwealth  sums  of  money  not  ex- 
ceeding in  the  aggregate  one  hundred  thousand  dollars. 
For  the  moneys  so  advanced  the  association  shall  exe- 
cute and  deliver  to  the  treasurer  its  promissory  notes 
payable  to  the  order  of  the  commonwealth  within  four 
years  after  the  respective  dates  thereof,  with  interest  at 
the  rate  of  four  per  cent,  per  annum,  payable  semi- 
annually.  The  notes  shall  be  signed  by  the  treasurer 
of  said  association  and  countersigned  by  its  president, 
and  shall  be  payable  either  serially  or  by  installments, 
so  that  at  least  one-fourth  of  the  aggregate  indebted- 
ness shall  be  paid  in  each  calendar  year,  beginning  with 
the  first  day  of  January,  nineteen  hundred  and  thirteen. 

Sec.  2.  The  treasurer  and  receiver  general  is  here- 
by authorized  to  borrow  upon  the  credit  of  the  com- 
monwealth, from  time  to  time,  such  amounts  as  may  be 
necessary  to  cover  the  advances  authorized  in  section 
one  of  this  act.  All  money  so  borrowed  shall  be  de- 
posited in  the  state  treasury,  and  the  treasurer  and  re- 
ceiver general  shall  pay  out  the  same  as  ordered  by  said 
association,  and  shall  keep  a  separate  and  accurate  ac- 
count of  all  sums  so  borrowed  and  advanced. 

Sec.  3.  The  provisions  of  Part  IV  of  said  chapter 
seven  hundred  and  fifty-one  in  regard  to  assessments  to 
provide  for  the  payment  of  losses  and  expenses  shall 
also  apply  to  and  authorize  assessments,  so  far  as  they 
may  be  necesary,  for  the  payment  of  said  notes  and  of 
the  interest  thereon. 


§  307      WORKMEN'S  COMPENSATION  AND  INSURANCE.      772 

Sec.  4.  Notes  issued  under  the  provisions  of  this 
act  shall  not  be  considered  as  rendering  the  association 
deficient  in  funds,  so  long  as  the  liability  of  subscribers 
to  assessment  exceeds  the  amount  of  said  notes  less  the 
proceeds  of  said  notes  still  in  the  hands  of  the  associa- 
tion. (Chapter  721,  Acts  of  1912.) 

§307.  Opinion  of  the  supreme  judicial  court  sus- 
taining constitutionality  of  compensation  act. — The 
question  of  the  constitutionality  of  the  Massachusetts 
act  was  submited  to  the  supreme  judicial  court  under  the 
following  resolution  of  the  senate: 

Whereas,  There  is  now  before  the  Senate  a  bill  en- 
titled "An  Act  relative  to  payments  to  employes  for 
personal  injuries  received  in  the  course  of  their  employ- 
ment and  to  the  prevention  of  such  injuries,"  being 
House  Document  No.  2154;  and 

Whereas,  No  similar  legislation  has  ever  been  en- 
acted in  this  commonwealth;  and 

Whereas,  An  act  for  a  similar  purpose  was  enacted 
in  the  State  of  New  York,  and  has  been  decided  to  be 
in  violation  of  the  constitution  of  the  State  of  New 
York  and  of  the  Fourteenth  Amendment  to  the  Consti- 
tution of  the  United  States ;  and 

Whereas,  There  appears  to  be  no  precedent  bearing 
on  said  subject  in  other  jurisdictions  in  the  United 
States; 

Be  it  ordered,  That  the  opinion  of  the  Justices  of  the 
Supreme  Judicial  Court  be  required  on  the  following 
important  questions  of  law: — 

First.  Is  the  said  bill,  House  Document  No.  2154, 
in  conformity  with  the  provisions  of  the  constitution  of 
the  commonwealth  of  Massachusetts  which  requires 
that  property  shall  not  be  taken  from  a  citizen  without 
due  process  of  law? 

Second.  Is  the  bill  in  conformity  with  the  four- 
teenth amendment  to  the  Federal  Constitution? 


773  MASSACHUSETTS  ACT.  §  307 

On  July  24,  1911,  the  Justices  sent  to  the  Senate 
their  response1*  in  these  words: 

To  the  Honorable  the  Senate  of  the  Commonwealth  of 

Massachusetts: 

We  have  received  the  questions,  of  which  a  copy 
with  the  act  referred  to  therein  and  the  amendment 
adopted  by  the  Senate,  is  hereto  annexed,  and  after  giv- 
ing to  them  such  consideration  as  we  have  been  able  to 
give  in  the  time  at  our  disposal,  we  respectfully  answer 
them  as  follows : 

The  questions  submitted  to  us  are  important,  and 
the  proposed  act  involves  a  radical  departure  in  the 
manner  of  dealing  with  actions  or  claims  for  damages 
for  personal  injuries  received  by  employes  in  the  course 
of  their  employment  from  that  which  has  heretofore 
prevailed  in  this  commonwealth;  but  we  think  that  noth- 
ing would  be  gained  by  an  extended  discussion  and  we 
therefore  content  ourselves  with  stating  briefly  the  con- 
clusions to  which  we  have  come  and  our  reasons  there- 
for. 

The  first  section  of  the  act  (Part  I,  §  1)  provides 
that  "In  an  action  to  recover  damages  for  personal  in- 
jury sustained  by  an  employe  in  the  course  of  his  em- 
ployment, or  for  death  resulting  from  personal  injury 
so  sustained,  it  shall  not  be  a  defense: 

1.  That  the  employe  was  negligent; 

2.  That  the  injury  was  caused  by  the  negligence  of 
a  fellow  employe; 

3.  That  the  employe  had  assumed  the  risk  of  the 
injury." 

This  section  deals  with  actions  at  common  law.  We 
construe  clauses  1  and  2  in  their  reference  to  negligence 
as  meaning  contributory  negligence  or  negligence  on 
the  part  of  a  fellow  servant  which  falls  short  of  the  se- 
rious and  wilful  misconduct  which  under  Part  II,  §  2, 

lain  re  Opinion  of  Justices,  209  Mass.  607,  96  N.  E.  308. 


§  3°7      WORKMEN'S  COMPENSATION  AND  INSURANCE.      774 

will  deprive  an  employe  of  compensation.  So  con- 
strued we  think  that  the  section  is  constitutional.  We 
neither  express  nor  intimate  any  opinion  whether  it 
would  be  unconstitutional  if  otherwise  construed.  The 
rules  of  law  relating  to  contributory  negligence  and  as- 
sumption of  the  risk  and  the  effect  of  negligence  by  a 
fellow  servant  were  established  by  the  courts,  not  by 
the  Constitution,  and  the  Legislature  may  change  them 
or  do  away  with  them  altogether  as  defenses  (as  it  has 
to  some  extent  in  the  employer's  liability  act)  as  in  its 
wisdom  in  the  exercise  of  powers  intrusted  to  it  by  the 
Constitution  it  deems  will  be  best  for  the  "good  and 
welfare  of  this  Commonwealth."  See  Missouri  Pacific 
Railway  v.  Mackey,  127  U.  S.  205,  8  Sup.  Ct.  1161,  32 
L.  ed.  107;  Minnesota  Iron  Co.  v.  Kline,  199  U.  S.  593, 
50  L.  ed.  322,  26  Sup.  Ct.  159.  The  act  expressly  pro- 
vides that  it  shall  not  apply  to  injuries  sustained  before 
it  takes  effect.  If,  therefore,  a  right  of  action  which 
has  accrued  under  existing  laws  for  personal  injuries 
constitutes  a  vested  right  or  interest,  there  is  nothing 
in  the  section  which  interferes  with  such  rights  or  inter- 
ests. The  effect  of  the  section  is  not  to  authorize  the 
taking  of  property  without  due  process  of  law,  as  the 
Court  of  Appeals  of  New  York  held  was  the  case  with 
the  statute  referred  to  in  the  preamble  to  the  questions 
submitted  to  us,  and  which  in  consequence  thereof  was 
declared  by  that  court  to  be  unconstitutional.  Ives  v. 
South  Buffalo  Railway,  201  N.  Y.  271,  94  N.  E.  431. 
Construing  the  section  as  we  do  and  as  we  think  that  it 
should  be  construed,  it  seems  to  us  that  there  is  noth- 
ing in  it  which  violates  any  rights  secured  by  the  State 
or  Federal  Constitutions.  We  see  nothing  unconstitu- 
tional in  providing,  as  is  done  in  Part  I,  §  2,  that  the 
provisions  of  §  1  shall  not  apply  to  domestic  servants 
and  farm  laborers;  nor  in  providing,  as  is  done  in  Part 
I,  §  5,  that  the  employe  shall  be  deemed  to  have  waived 
his  right  of  action  at  common  law  if  he  shall  not  have 


775  MASSACHUSETTS  ACT.  §  307 

given  notice  to  his  employer  as  therein  provided.  The 
effect  of  the  provisions  referred  to  is  to  leave  it  at  the 
employe's  option  whether  he  will  or  will  not  waive  his 
right  of  action  at  common  law.  See  Foster  v.  Morse, 
132  Mass.  354,  42  Am.  Rep.  438. 

The  rest  of  the  act  deals  mainly  with  a  scheme  for 
providing,  through  the  instrumentality  of  a  corporation 
established  for  that  purpose  entitled  the  Massachusetts 
Employes  Insurance  Association,  and  the  subscription 
of  employers  thereto,  for  compensation  to  employes  for 
personal  injuries  received  by  them  in  the  course  of  their 
employment,  and  not  due  to  serious  and  wilful  miscon- 
duct 6n  their  part.  There  is  nothing  in  the  act  which 
compels  an  employer  to  become  a  subscriber  to  the  As- 
sociation, or  which  compels  an  employe  to  waive  his 
right  of  action  at  common  law  and  accept  the  compen- 
sation provided  for  in  the  act.  In  this  respect  the  act 
differs  wholly  so  far  as  the  employer  is  concerned  from 
the  New  York  statute  above  referred  to.  By  subscrib- 
ing to  the  Association  an  employer  voluntarily  agrees 
to  be  bound  by  the  provisions  of  the  act.  The  same 
is  true  of  an  employe  who  does  not  choose  to  stand 
upon  his  common  law  rights.  An  employer  who  does 
not  subscribe  to  the  Association  will  no  longer  have  the 
right  in  an  action  by  his  employe  against  him  at  com- 
mon law  to  set  up  the  defense  of  contributory  negligence 
or  assumption  of  the  risk,  or  to  show  that  the  injury 
was  caused  by  the  negligence  of  a  fellow  servant.  In 
the  case  of  an  employe  who  does  not  accept  the  com- 
pensation provided  for  by  the  act  and  whose  employer 
had  become  a  subscriber  to  the  Association,  an  action 
no  longer  can  be  maintained  for  death  under  the  em- 
ployer's liability  act.  But  these  considerations  do  not 
constitute  legal  compulsion  or  a  deprivation  of  funda- 
mental rights.  We  do  not  deem  it  necessary  to  take  up 
and  consider  in  detail  the  numerous  provisions  by  which 
the  right  to  compensation  a*nd  the  amount  thereof  and 


§  3°7      WORKMEN'S  COMPENSATION  AND  INSURANCE.      776 

the  persons  entitled  thereto  and  the  course  of  pro- 
cedure to  be  followed  and  matters  relating  thereto  are 
to  be  settled  and  determined.  We  assume,  however,  that 
the  meaning  of  §§  4  and  7  of  Part  III  of  the  proposed 
act  is  that  the  approved  agreement  or  decision  therein 
mentioned  is  to  be  enforced  by  proper  proceedings  in 
court,  and  not  by  process  to  be  issued  by  the  industrial 
accident  board  itself.  Taking  in  account  the  non-com- 
pulsory character  of  the  proposed  act,  we  see  nothing 
in  any  of  these  provisions  which  is  not  "in  conformity 
with"  the  fourteenth  amendment  to  the  Federal  Con- 
stitution, or  which  infringes  upon  any  provision  of  our 
own  Constitution  in  regard  to  the  taking  of  property 
"without  due  process  of  law."  It  is  within  the  power 
of  the  Legislature  to  provide  that  no  agreement  by  an 
employe  to  waive  his  rights  to  compensation  under  the 
act  shall  be  valid.  See  Missouri  Pacific  Railway  v. 
Mackey,  127  U.  S.  205,  32  L.  ed.  107,  8  Sup.  Ct.  1161; 
Minnesota  Iron  Co.  v.  Kline,  199  U.  S.  593,  50  L.  ed. 
322,  26  Sup.  Ct.  159. 

In  regard  to  the  amendment  it  is  to  be  observed  that 
no  liability  insurance  company  is  obliged  to  insure,  and 
that  if  it  chooses  to  do  so  there  is  nothing  unconstitu- 
tional in  requiring  that  it  and  the  policyholder  shall  be 
governed  by  the  provisions  of  the  act  so  far  as  ap- 
plicable. 

It  should  be  noted  perhaps  in  the  interest  of  accu- 
racy that  there  is  no  phrase  in  our  Constitution  which 
in  terms  requires  that  "property  shall  not  be  taken  from 
a  citizen  without  due  process  of  law."  The  quoted 
words,  which  we  take  from  the  first  question  submitted 
to  us,  are  a  paraphrase  of  what  is  contained  in  the 
Constitution,  but  are  not  the  language  of  the  Constitu- 
tion itself. 

We  have  confined  ourselves  to  the  questions  submit- 
ted to  us,  and  we  answer  both  of  them  in  the  affirma- 
tive. 


777  MASSACHUSETTS  ACT.  §  308 

Owing  to  their  absence  from  the  commonwealth,  the 
Chief  Justice  and  Mr.  Justice  Loring  have  taken  no 
part  in  the  consideration  of  the  questions. 
JAMES  M.  MORTON. 
JOHN  W.  HAMMOND. 
HENRY  K.  BRALEY. 
HENRY  N.  SHELDON. 
ARTHUR    PRENTICE    RUGG. 
July  24,  1911. 

§  308.  Rules  of  Industrial  Accident  Board. — The  act 
provides  for  the  creation  of  the  Industrial  Accident 
Board  and  invests  it  with  the  general  supervision  over 
all  parties  affected  by  the  act  and  quasi  judicial  powers. 
This  board  under  its  authority  to  prescribe  rules  has 
promulgated  the  following  rules  for  the  administration 
of  the  law. 

Rule  1.  Manner  of  giving  notice  by  employer  of 
acceptance  of  the  act. — If  personal  service  is  not  made 
of  the  notices  required  by  sections  20  and  21  of  Part  IV, 
chapter  751  of  the  Acts  of  1911,  and  the  amendments 
thereto,  said  notices  may  be  given  by  posting  the  same 
at  one  or  more  of  the  principal  entrances  to  the  factory, 
shop  or  place  of  business  of  the  employer,  and  in  each 
room  where  labor  is  employed;  said  notices  to  be 
printed  or  typewritten. 

Supplement  to  Rule  1. — It  has  been  represented  to 
the  Industrial  Accident  Board  that  it  is  possible  that 
employes  may  be  engaged  for  labor  away  from  the  office 
or  headquarters  of  the  subscriber,  or  may  be  employed 
in  more  than  one  place  or  office,  and  that  in  these  cases 
personal  notice  is  not  always  possible  or  practical.  To 
meet  this  situation  the  Board  has  passed  the  following 
supplement  to  Rule  No.  1 : — 

Where  the  same  employes  are  employed  in  more 
than  one  room  in  a  building,  or  in  various  places,  or 
where  employers  are  engaged  in  such  business  as  that 


§  308      WORKMEN'S  COMPENSATION  AND  INSURANCE.      778 

of  managing  office  buildings,  and  personal  service  of  the 
notices  required  by  sections  20  and  21,  Part  IV,  chapter 
751  of  the  Acts  of  1911,  and  amendments  thereto,  is  not 
made,  said  notices  can  be  served  by  posting  the  same  at 
one  or  more  of  the  principal  entrances  to  each  building 
so  managed,  or  where  labor  is  employed,  or  by  posting 
the  same  in  a  conspicuous  place  near  any  time  clock  or 
other  registering  device  which  employes  in  any  such 
building  are  required  to  use,  or  by  posting  the  same  at 
the  entrance  to  the  office  of  the  janitor  of  said  building, 
or  by  posting  the  same  at  the  place  where  the  employe 
is  hired. 

Rule  2.  Manner  of  giving  notice  by  employe  to  em- 
ployer.— In  each  instance  the  notice  shall  be  served  up- 
on the  employer,  or  upon  one  employer  if  there  are 
more  employers  than  one,  or  upon  any  officer  or  agent 
of  a  corporation  if  the  employer  is  a  corporation,  by 
delivering  the  same  to  the  person  on  whom  it  is  to  be 
served,  or  by  leaving  it  at  his  residence  or  place  of  busi- 
ness, or  by  sending  it  by  registered  mail  addressed  to 
the  person  or  corporation  on  whom  it  is  to  be  served,  at 
his  last  known  residence  or  place  of  business.  (Section 
5,  Part  I,  chapter  751,  of  the  Acts  of  1911,  and  amend- 
ments thereto.) 

Rule  3.  Report  of  accidents  by  association  or  insur- 
ance companies  to  the  board. — That  the  association  and 
liability  insurance  companies  report  to  it  all  accidents 
within  five  days  after  receipt  of  notice  thereof  by  them 
from  any  subscriber,  by  sending  to  the  Industrial  Acci- 
dent Board  a  list  or  brief  statement  of  the  same. 

Rule  4.  Additional  copy  of  employes  claim  for  com- 
pensation to  be  sent  to  insurance  association  or  com- 
pany.— An  employe  making  a  claim  for  compensation 
under  this  act  shall  furnish  the  association  or  insurance 
company  against  whom  said  claim  is  made  with  a  copy 
thereof  by  mail  or  otherwise  forthwith,  upon  the  filing 
of  the  same  with  the  Industrial  Accident  Board.  This 


779  MASSACHUSETTS  ACT.  §  308 

rule  shall  be  without  prejudice  to  any  rights  acquired 
by  the  filing  of  said  claim  with  the  Board  under  the  pro- 
visions of  Part  II,  section  23,  chapter  751  of  the  Acts  of 
1911,  and  amendments  thereto,  or  by  other  provisions 
of  said  act. 

Rule  5.  Insurance  association  and  companies  to 
notify  industrial  accident  board  of  employers  who  insure 
or  cease  to  insure. — That  the  Insurance  association  and 
all  liability  insurance  companies  shall  notify  the  indus- 
trial accident  board  of  the  names  and  addresses  of  all 
employers  who  insure  their  liability  under  the  work- 
men's compensation  act,  notice  to  be  given  forthwith 
upon  the  issuance  of  such  insurance  and  a  further  notice 
to  be  given  when  employers  cease  to  be  so  insured. 

Rule  6.  Agreements  between  the  insurer  and  em- 
ploye.— Every  agreement  in  regard  to  compensation  un- 
der this  act  is  subject  to  approval  by  the  Industrial  Acci- 
dent Board,  and  a  memorandum  of  the  same  must  be 
filed  with  the  Board,  whether  said  agreement  is  written 
or  oral,  and  whether  it  is  made  by  one  or  both  parties, 
or  in  the  form  of  a  receipt.  Any  weekly  payment  or 
settlement  under  the  act,  whether  purporting  to  be  final 
or  otherwise,  may  be  reviewed  by  the  Board.  (Section 
20,  Part  II,  and  sections  4  and  12,  Part  III,  chapter  751 
of  the  Acts  of  1911,  and  amendments  thereto,  and  rule 
adopted  by  the  Board.) 

The  above  paragraph  of  this  rule  shall  be  written  or 
printed  at  the  head  of  every  agreement  regarding  com- 
pensation, and  of  every  receipt  taken  by  the  insurer 
from  the  employe. 

Rule  7.  Employer  to  file  notice  of  insurance  with 
the  board. — Every  employer  shall  file  with  the  Industrial 
Accident  Board  a  copy  of  the  form  of  notice,  including 
the  signature  thereto,  which  he  has  given  to  his  em- 
ployes that  he  has  insured  under  this  act. 

Rule  8.  Employer  to  notify  employes  of  change  of 
insurer. — Every  employer  shall  notify  his  employes  of 


§  3°9      WORKMEN'S  COMPENSATION  AND  INSURANCE.      780 

any  change  of  insurer  by  serving  or  posting  a  new 
"notice  to  employes,"  stating  the  name  of  the  new  in- 
surance company  or  association  insuring  his  liability 
under  this  act,  and  riling  a  copy  of  such  notice  with  the 
Industrial  Accident  Board. 

§  309.  Formal  procedure — List  of  forms. — The  In- 
dustrial Accident  Board  of  Massachusetts,  responding  to 
the  duties  imposed  upon  it  by  the  law  has  prescribed 
fifteen  forms  which  are  required  to  be  used  by  employ- 
ers, injured  employes,  insurance  associations  and  liabil- 
ity insurance  companies  covered  by  the  act,  together 
with  certain  instructions  which  are  designated  as  fol- 
lows: 

(a)  Notice  to  employes  (by  employer) ; 

(b)  Notice  of  claim  of  common-law  rights  (by  em- 
ploye) ; 

(c)  Notice  of  waiver  of  rights  under  common  law 
previously  claimed  (by  employe)  ; 

(d)  Agreement  for  redeeming  liability  by  payment 
of  lump  sum  (by  employe  and  insurer)  : 

(e)  Notice  that  an  employer  has  ceased  to  be  a 
subscriber  (by  employer)  ; 

(f)  Notice  to  industrial  accident  board  that  an  in- 
jured employe  has  refused  to  submit  himself  to  an  ex- 
amination (by  insurance  association  of  company)  ; 

(g)  Notice    to    employe    from    industrial   accident 
board  relative  to  his  refusal  to  submit  himself  to  an 
examination  (by  Industrial  Accident  Board)  ; 

(h)  Agreement  in  regard  to  compensation  (by  em- 
ploye and  insurer)  ; 

(i)  Claims  for  compensation  for  injury  (by  em- 
ploye) ; 

(j)     Notice  of  injury  (by  employe); 

(k)     Report  of  committee  on  arbitration; 

(1)  Application  for  review  of  claims  before  full 
board  (by  aggrieved  party)  ; 


781  MASSACHUSETTS  ACT.  §  310 

(m)  Notice  assessing  cost  of  proceedings  before 
arbitration  committee  upon  party  prosecuting  or  de- 
fending same  without  reasonable  grounds  (by  employe 
and  insurer)  ; 

(n)  Receipt  on  account  of  compensation  (by  em- 
ploye) ; 

(o)     Settlement  receipt  (by  employe). 

These  forms  are  given  in  full  in  the  succeeding 
pages  in  the  foregoing  order. 

§310.     Form  of  notice  to  employes  (a): 

As  required  by  chapter  751,  of  the  Acts  of  1911,  Commonwealth 
of  Massachusetts,  and  amendments  thereto,  entitled  "An  Act  rela- 
tive to  payment  to  employes  for  personal  injuries  received  in  the 
course  of  their  employment,  and  to  the  prevention  of  such  injuries." 

This  will  give  you  notice  that  I  (we)  have  provided  for  payment 
to  our  injured  employes  under  the  above  act  by  insuring  with  the 
Insurance  Co. 

Insert  address  of  company  here. 
Date 

Name  of  employer. 
Address    

City  or  town.  Street  and  number. 

§311.  Form  of  notice  of  claim  of  common-law 
rights,  (b) 

191— 

To    

Name  of  employer. 

This  is  to  notify  you  that  I  claim  my  right  of  action  at  common 
law  to  recover  damages  for  personal  injuries.  This  notice  is  given 
to  you  under  the  Acts  of  1911,  chapter  751,  section  5,  Part  I,  and 
amendments  thereto. 


Signature  of  employe. 
Address  ________________  ------------- 

City  or  town,  Street  and  No. 


§  312.     Form  of  notice  of  waiver  of  rights  under 
common  law  previously  claimed,  (c) 


To  ___________________________________  Employer. 

This  is  to  notify  you  that  I  waive  my  rights  under  the  common 
law  previously  claimed  by  former  notice,  and  now  claim  my  rights 


§  313      WORKMEN'S  COMPENSATION  AND  INSURANCE.      782 

under  the  workmen's  compensation  act.  This  notice  is  given  to  you 
under  the  Acts  of  1911,  chapter  751,  section  5,  Part  I,  and  amend- 
ments thereto. 


Signature  of  employe. 

§  313.     Form  of  agreement  for  redeeming  liability  by 
payment  of  lump  sum.  (d)2 

Received  of 

Name  of  insurer. 

the  lump  sum  of dollars 

and cents,  making  in  all,  with  weekly 

payments  already  received  by  me,  the  total  sum  of 

dollars  and cents,  a  weekly 

payment  having  been  continued  for  not  less  than  six  months.  Said 
payments  are  received  in  redemption  of  the  liability  for  all  weekly 
payments  now  or  in  the  future  due  me  under  the  Massachusetts 
Workmen's  Compensation  Act,  for  all  injuries  received  by  me  on 

or  about  the day  of ,   191 ,  while 

in  the  employ  of ,  subject  to 

Name  of  employer  and  address, 
the  approval  of  the  Industrial  Accident  Board. 

Witness  my  hand  this day  of ,  191 — 

Witness 

Name.  Name  of  employe. 

Address 

City  or  town.  City  or  town. 

Street  and  number.  Street  and  number. 

§  314.    Form  of  notice  that  an  employer  has  ceased 
to  be  a  subscriber,  (e) 

Section  21,  Part  IV,  chapter  751,  Acts  of  1911,  as  amended  by  sec- 
tion 16,  chapter  571,  Acts  of  1912,  provides  that  when  an  employer 
ceases  to  be  a  subscriber,  he  shall,  on  or  before  the  day  on  which 
his  policy  expires,  give  notice  thereof  in  writing  or  print  to  all 
persons  under  contract  of  hire  with  him,  and  he  shall  file  a  copy 
of  said  notice  with  the  Industrial  Accident  Board.  In  case  of  the 
renewal  of  the  policy,  no  notice  is  required.  Following  is  the  form : 

Notice. 

This  is  to  give  you  notice  that  I  (we)  have  ceased  to  be  a  sub- 
scriber in  any  insurance  company,  under  chapter  751,  Acts  of  1911, 


2  Whenever  any  weekly  payment  has  been  continued  for  not  less 
than  six  months,  the  liability  therefor  may  in  unusual  cases  be  re- 
deemed by  the  payment  of  a  lump  sum  by  agreement  of  the  parties, 
subject  to  the  approval  of  the  Industrial  Accident  Board.  (Section 
22,  Part  II,  chapter  751,  Acts  of  1911,  and  amendments  thereto.) 


783  MASSACHUSETTS  ACT.  §  31 5 

and  amendments  thereto,  and  that  the  policy  formerly  held  by  me 
expired or  is  to  expire 


Name  of  employer. 

.Address,    

City  or  town,  street  and  No. 


§  315.  Form  of  notice  to  industrial  accident  board 
that  an  injured  employe  has  refused  to  submit  himself 
to  an  examination,  (f) 

You  are  hereby  notified  that 

Name  of  employe. 

Street  and  No.  City  or  town. 

who  was  injured  on  or  about while  in  the  employ  of 

Date 
at 

Name  of  employer.  Place, 

has  refused  to  submit  himself  to  an  examination,  as  required  under 
the  provisions  of  section  19,  Part  II,  chapter  751  of  the  Acts  of  1911, 
and  amendments  thereto. 


Name  of  insurance  association  or  company. 

Per 

191 

City. 

§316.  Form  of  notice  to  employe  from  industrial 
accident  board  relative  to  his  refusal  to  submit  himself 
to  an  examination,  (g) 

To 

Street  and  No.                      City  or  town. 
The    

Name  of  insurance  company. 

has  notified  the  Industrial  Accident  Board,  under  date  of 

191 ,  that  you  have  refused  to  submit  yourself  for  examination, 

as  required  by  section  19,  Part  II,  chapter  751,  Acts  of  1911,  and 
amendments  thereto.  Your  attention  is  called  to  the  terms  of  the 
act  which  provides — 

"After  employe  has  received  an  injury,  and  from  time  to  time 

thereafter he  shall submit  himself  to  an  examination  by 

a  physician  or  surgeon furnished  and  paid  for  by  the  association 

or  subscriber.  The  employe  shall  have  the  right  to  have  a  physician 
provided  and  paid  for  by  himself  present  at  the  examination.  If  he 
refuses  to  submit  himself  for  the  examination,  or  in  any  way  ob- 


§317      WORKMEN'S  COMPENSATION  AND  INSURANCE.      784 

structs  the  same,  his  right  to  compensation  shall  be  suspended,  and 
his  compensation  during  the  period  of  suspension  may  be  forfeited." 

INDUSTRIAL  ACCIDENT  BOARD, 

By 

§  317.     Form  of  agreement  in  regard  to  compensa- 
tion. (h)3 

,  Employe 

,  Insurer. 

We, ,  residing  at 

Name  of  injured  employe, 
city  or  town  of and  the 

Name  and  address  of  insurance  association  or  company, 
have  reached  an  agreement  in  regard  to  compensation  for  the  injury 
sustained  by  said  employe  while  in  the  employ  of 

Here  insert  name  and  address  of  employer. 

Here  insert  the  time,  including  hour  and  date  of  accident,  the 
place  where  it  occurred,  the  nature  and  cause  of  injury,  and  other 
cause  or  ground  of  claim. 

The  terms  of  the  agreement  follow : 

(Here  state  the  sum  per  week  agreed  upon  subject  to  the  terms  of  the 

Act.) 

Witness.  Name  of  injured  employe 


'      Name  of  insurance  association  or  company. 

§  318.     Form  of  claim  for  compensation  for  injury. 

(O4 

This  is  to  notify  you 

(Name    of    association    or    company    with 
which  employer  is  insured.) 
that  I  claim  compensation  from  you  under  the  workmen's  compen- 


3  Every  agreement  in  regard  to  compensation  under  this  act  is 
subject  to  approval  by  the  Industrial  Accident  Board,  and  a  memoran- 
dum of  the  same  must  be  filed  with  the  Board,  whether  said  agree- 
ment is  written  or  oral,  and  whether  it  is  made  by  one  or  both  par- 
ties, or  in  the  form  of  a  receipt.    Any  weekly  payment  or  settlement 
under  the  act,  whether  purporting  to  be  final  or  otherwise,  may  be 
reviewed  by  the  Board.     (Section  20,  Part  II,  and  sections  4  and  12, 
Part  III,  chapter  751  of  the  Acts  of  1911,  and  amendments  thereto, 
and  Rule  No.  6  adopted  by  the  Board.) 

4  This  claim  is  to  be  filed  with  the  Industrial  Accident  Board  and 
may  be  sent  by  mail ;  at  the  time  of  filing,  a  copy  thereof  should  also 
be  sent  by  the  employe  to  the  insurance  association  or  company.    The 
claim  should  be  made  within  six  months  after  the  occurrence  of  the 
injury.     (Chapter  751,  Part  II,  section  15,  and  section  23,  as  amended 
by  Acts  of  1912,  chapter  571,  section  5.) 


785  MASSACHUSETTS  ACT.  §3J9 

sation  act,  chapter  751,  Acts  of  1911,  and  amendments  thereto,  for 

personal  injury  sustained  while  in  the  employ  of 

,  of  

Name  of  employer  Street  and  number. 

The  time  of  my  injury  was 

City,  or  town. 

Here  state  date  and  time  of  day  as  near  as  possible. 
The  place  of  injury  was 


State  name  or  description  of  building,  or  place,  where  injury  was 

sustained. 

The  cause5  of  my  injury  was 

Describe  cause  of  injury. 
The  nature  of  my  injury  is  as  follows : 

___..____.»..__»_  _______ — — — ._  — — —  —  — ____..  —  .-._..  —  _  —  —  — 

Describe  injury  with  such  exactness  as  possible. 
Signature  of  injured  employe. 
Street  and  number. 
City    or    town. 


Date   of   making   this   claim. 
Name  of  association  or  company  with  which  employer  is  insured. 

§  319.     Form  of  notice  of  injury,  (j)6 

This  is  to  notify  you 

Name  of  employer,  or  insurance  association  or  company, 
that  on  the day  of ,  191 — ,  at  about o'clock, 


5  If  it  is  claimed  that  the  injury  was  caused  by  the  serious  and 
willful  misconduct  of  the  employer,  or  of  any  person  regularly  en- 
trusted or  exercising  the  powers  of  superintendent,  it  is  requested 
that  it  be  stated  in  this  claim  for  compensation,  setting  forth  in  the 
alleged  cause,   in  general  terms,   in  what  the   serious  and  willful 
misconduct  of  the  employer  or  superintendent  consisted. 

Section  14  of  Part  III  of  this  act  provides  that  if  any  proceedings 
are  brought,  prosecuted  or  defended  under  this  act  without  reasona- 
ble ground,  the  whole  cost  of  the  proceedings  shall  be  assessed  upon 
the  party  who  has  so  brought,  prosecuted  or  defended  them. 

6  Under  sections  15,  16  and  17,  Part  II,  chapter  751,  Acts  of  1911, 
and  amendments  thereto,  notice  of  the  time,  place  and  cause  of  the 
injury  must  be  given  to  the  employer  or  the  association  or  the  liabil- 
ity insurance  company,  as  soon  as  practicable  after  the  happening 
thereof.    The  following  is  a  form  of  the  notice  to  be  given  under  the 
above  sections. 

50— BOTD  w  c 


§  320     WORKMEN'S  COMPENSATION  AND  INSURANCE.      786 

a.  m.  or  p.  m ,  I  received  personal  injury  while  in  your  em- 
ploy in  the  city  (town)  of in  the 

Name  or  description  of  building  or  place  of  employment. 

and  that  the  accident  was  caused  to  me  by  reason  of 

Describe  cause  of  injury. 


Name  of  employe. 

City  or  town. 

Address 

Street  and  number. 

§320.    Form  of  report  of  committee  on  arbitra- 
tion, (k) 

,     Employe. 

,     Insurer. 

The  arbitration  committee  appointed  under  the  provisions  of 
section  7,  Part  III,  chapter  751,  Acts  of  1911,  and  amendments  there- 
to, having  investigated  the  claim  of 

v.    __ 

being  case  No.  on  the  files  of  the  Industrial  Accident 

Board,  report  as  follows — 

(Here  will  follow  report.) 

§  321.    Form  of  application  for  review  of  claim  be- 
fore full  board.  (I)7 

To  the  Industrial  Accident  Board,  Boston,  Mass. 

The  undersigned,  as  provided  in  Part  III,  section  7,  chapter  751 
of  the  Acts  of  1911,  and  amendments  thereto,  makes  application  for 
a  review  of  the  findings  of  the  Committee  on  Arbitration  in  the 

claim  of 

v.  

This  claim  for  a  review  is  based  on  the  following  grounds — 


.191. 


§  322.  Form  of  notice  assessing  cost  of  proceedings 
before  arbitration  committee  upon  party  prosecuting  or 
defending  same  without  reasonable  grounds,  (m) 

, ,     Employe. 

,     Insurer. 

To   

You  are  hereby  notified  that  the  proceedings  before  the 


7  "No  party  shall  as  a  matter  or  right  be  entitled  to  a  second 
hearing  on  any  matter  of  fact." 


787  MASSACHUSETTS  ACT.  §  323 

Industrial  Accident  Board,  or  Arbitration  Committee,  as  case  may  be. 
on  the  above-entitled  claim,  have  been  determined  by  said  Committee, 

or    Board,    to   have   been by   you   without   reasonable 

Prosecuted  or  defended. 

grounds,  and  that  the  costs,  amounting  to  $ ,  are  assessed 

against  you. 

Respectfully, 

INDUSTRIAL  ACCIDENT  BOARD, 
or  ARBITRATION  COMMITTEE. 
By 

§  323.     Form  of  receipt  on  account  of  compensa- 
tion, (n) 

Received  of 

Name  of  insurance  association  or  company. 

the   sum   of dollars, 

and cents,  being  the  proportion  of  my  weekly  wages  for 

the  period  from  the day  of ,    191 ,  to  the 

day  of ,  191 — ,  under  the  Massachusetts  Workmen's  Com- 
pensation Act,  subject  to  review  by  the  Industrial  Accident  Board.8 


Witness  Employe. 

Street  and  number.  Street  and  number 

City  or  town.  City  or  town. 

§  324.     Form  of  settlement  receipt,  (o)9 

Received  of 

Name  of  insured. 

the  sum  of dollars 

and cents,  making  in  all,  with  weekly  payments  already 

received  by  me,  the  total  sum  of dollars 

and cents,    in   settlement   of   compensation    under   the 

Massachusetts   Workmen's   Compensation   Act,   for   all   injuries   re- 


8  Every  agreement  in  regard  to  compensation  is  subject  to  ap- 
proval by  the  Industrial  Accident  Board,  and  a  memorandum  of  the 
same   must   be  filed   with   the   Board,   whether   said   agreement   is 
written  or  oral,  and  whether  it  is  made  by  one  or  both  parties,  or  in 
the  form  of  a  receipt.    Any  weekly  payment  or  settlement  under  the 
act,  whether  purporting  to  be  final  or  otherwise,  may  be  reviewed 
by  the  Board.    Section  20,  Part  II,  and  sections  4  and  12,  Part  III, 
chapter  751  of  the  Acts  of  1911,  and  amendments  thereto,  and  rule 
adopted  by  the  Board. 

9  Every  agreement  in  regard  to  compensation  under  this  act  is 
subject  to  approval  by  the  Industrial  Accident  Board,  and  a  memo- 


§  324      WORKMEN'S  COMPENSATION  AND  INSURANCE.      788 

ceived  by  me  on  or  about  the day  of ,  191 , 

while  in  the  employ  of 


Name  of  employer,  city  or  town,  street  and  number, 
subject  to  approval  and  review  by  the  Industrial  Accident  Board. 

Witness  my  hand  this day  of ,    191 

Witness   

Name.  Name  of  employe. 

Address    

Street  and  number.  Street  and  number. 

City  or  town.  City  or  town. 


randum  of  the  same  must  be  filed  with  the  Board,  whether  said 
agreement  is  written  or  oral,  and  whether  it  is  made  by  one  or  both 
parties,  or  in  the  form  of  a  receipt.  Any  weekly  payment  or  settle- 
ment under  the  act,  whether  purporting  to  be  final  or  otherwise, 
may  be  reviewed  by  the  Board.  (Section  20,  Part  II,  and  sections 
4  and  12,  Part  III,  chapter  751  of  the  Acts  of  1911,  and  amendments 
thereto,  and  Rule  No.  6  adopted  by  the  board.) 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


A     000704814    3 


University  of  California 

SOUTHERN  REGIONAL  LIBRARY  FACILITY 

405  Hilgard  Avenue,  Los  Angeles,  CA  90024-1388 

Return  this  material  to  the  library 

from  which  it  was  borrowed. 


